Lord Burnett

John Patrick Aubone Burnett, Esquire, having been created Baron Burnett, of Whitchurch in the County of Devon, for life—Was, in his robes, introduced between the Lord Dholakia and the Lord Kirkwood of Kirkhope.

Lord Trimble

The right honourable William David Trimble, Esquire, having been created Baron Trimble, of Lisnagarvey in the County of Antrim, for life—Was, in his robes, introduced between the Lord Rogan and the Lord Steinberg.

EU: Council of Ministers

Lord Dykes: asked Her Majesty's Government:
	What progress is being made in the declared objective of the European Union authorities to bring European Union Council of Ministers' decisions and legislation more to the attention of the general public.

Lord Triesman: My Lords, we welcome the steps taken by the institutions to become more open and accessible. We are in close touch with the Commission and the European Parliament and welcome initiatives such as the Commission's Europe Direct centres. The Prime Minister has made clear our commitment to transparency in the working of the Council of Ministers. The Austrian and Finnish presidencies are seeking to take that commitment forward.

Lord Dykes: My Lords, I thank the Minister for that Answer. I am sure that everybody in the House would agree that it is not an easy task to achieve this in such a large Union. In the British press, it is normally the Commission that gets the bashing, as the Minister would probably agree. For the member states, it is less so, except for France and, to a lesser extent, Germany—and Spain, if Real Madrid is doing well at the football.
	Does the Minister agree that, after 33 years of our sometimes hesitant membership of the Union, it is perhaps time for the British Government to take the initiative? Notwithstanding what he just said about the things that have been introduced, would it be possible to propose a specific new mechanism at next week's European Council to give legitimate, rational authority and publicity to the Council of Ministers' legislative and decision-making deliberations?

Lord Triesman: My Lords, at the European Parliament on 23 June, in response to Graham Watson MEP, the Prime Minister made the point clearly. He said:
	"Mr Watson challenged me over Council transparency and, certainly in relation to legislating, there is a strong case for that".
	It was considered during the presidency, and it has been considered since. However, I make the point that, alongside those considerations, there are other priorities of some importance to Europe, including those that we have discussed in your Lordships' House that resulted from the discussions at Hampton Court. We are keen to ensure that issues of the future of Europe are discussed in as public a way as possible but alongside the issues that are of real substance.

Lord Renton: My Lords, is not the real question that in any modern democracy the great mass of people is only concerned in the broadest terms about who is going to have power and that we must educate the people much more than they have been in order to get them to understand the real situation?

Lord Triesman: My Lords, I am wholly in favour of the widest possible understanding of the different powers that exist in Europe or, indeed, in our own parliamentary system. Alongside people's interest in that, there is real concern, as was demonstrated in the referendums in Europe, to know what Europe adds in value to the economy, employment, security and a wide range of other things. I am more fearful of a wholly inward-looking and constitutional debate that ignores the things that citizens make it plain that they regard as more important.

Baroness Rawlings: My Lords, in the spirit of transparency that the Minister was talking about, which we export at every possible moment, and following the last enlargement, would the Minister agree that having open Council meetings, where, after all, nearly everything concerning EU legislation is decided, would be the most honest way of keeping Ministers far more accountable to national Parliaments and the people? Are Her Majesty's Government proposing to make Council meetings open?

Lord Triesman: My Lords, the Prime Minister has indicated that he wants to see greater openness, and that sentiment is commonly held. I suspect that there is a balance in these matters, because some of the discussions that would be held in the Council concern the positions that Europe is going to take vis-à-vis other parts of the world on trade and other matters. There plainly needs to be a balance between things that are completely open and those where one wants a frank discussion that is not always conducted wholly in the open.

Lord Maclennan of Rogart: My Lords, is it not the case that Ministers have frequently urged the reconnection of the Union and its institutions with the citizens? Would it not help that process, at least so far as legislation is concerned, if the Council sat openly in public like every other legislative body in Europe? Is it not time that it was recognised that that does not require a treaty amendment and that focusing on something that enables the press accurately to report the ebb and flow of debates and the public thereby to be aware of what is happening is not navel-gazing but properly informing citizens in a growing democracy?

Lord Triesman: My Lords, I have expressed the view that we would welcome greater openness. Perhaps the only bit of the noble Lord's optimism that I do not entirely share is the view that the press will gravitate to the most accurate accounts of all matters European. I hope that I live long enough to see that day.

Lord Tebbit: My Lords, do the Government have any plans either to move more powers from the Westminster Parliament to Brussels or to bring any powers back from Brussels to the Westminster Parliament? Surely that would interest the citizens and get them highly keen to debate the matters.

Lord Triesman: My Lords, it is well known that we are not eager to export any powers of our Parliament beyond those that have been agreed in past treaties and that there is a strong desire under the provisions for subsidiarity to see our Parliament take as many of the decisions as it can. The real aim in the balance—I am sure that noble Lords will agree that there is a balance in these matters—is to ask ourselves whether any real value is added by doing things with the other 25. Frequently there will be. We might as well not be ungenerous in acknowledging that.

Lord Stoddart of Swindon: My Lords, the noble Lord mentioned subsidiarity. Can he tell the House of any policy matter that has been restored from the European Union to this country or to any other country of the European Union?

Lord Triesman: My Lords, as the House knows, there has been a certain ebb and flow between decisions taken in the legal fora of Europe and those taken here. We have argued strenuously that those that we regard as being within our sovereign right should remain here. That remains a continuing argument. I am confident that we are not keen to see any of those rights taken away from us where there is not a real advantage for this country.

Lord Stoddart of Swindon: My Lords, can the noble Lord give some examples of the ebbs and flows?

Lord Triesman: My Lords, I shall bring back the briefings—not from last week, as we were away, but from the week before, the week before that and the week before that, where we discussed all the issues of the ebb and flow, which some people say indicate the attempt by the European legal fora to take over our rights, and where I have tried to respond by showing that we have stoutly defended those rights. I am not sure whether a further repeat of that will edify the House, but that is entirely in the hands of the House.

Baroness Williams of Crosby: My Lords, if the Council had been open over the last few years, the public in this country and, indeed, the public throughout western Europe would have been aware of the astonishing achievement constituted by enlargement, in which democracy, the rule of law and an independent judiciary have now been extended to an additional 150 million Europeans. Does the Minister agree that that great achievement has not yet been sufficiently recognised in our own country or in other parts of the world?

Lord Triesman: My Lords, I agree. I also agree that it is plain, particularly from the French and the Dutch referendums, that in all parts of Europe the extent to which advantages have accrued to citizens, extending right across the former Iron Curtain, has not been fully recognised. The peace of Europe has been in large measure achieved by the development of European institutions through the European Union. However, I understand that there is a strong desire among people who are very sympathetic to the development of Europe to ensure that things that should remain with sovereign Parliaments do so because they are closer to their citizens.

Lord Tomlinson: My Lords, following up the views of the noble Lord, Lord Stoddart, on ebbs and flows, can my noble friend help us by bringing us up to date on the ebb of Conservative Members of the European Parliament from the European People's Party and the direction in which they are flowing?

Lord Triesman: My Lords, the temptation to answer questions about the trajectory of the Conservative Party is great. I notice that noble Lords were generous enough as they indicated that they felt that the party was going up and all used their right hands in pointing to the right.

Lord Kilclooney: My Lords, why do we require Council meetings, but not our own Cabinet meetings, to be open?

Lord Triesman: My Lords, a degree of openness is always useful, but I do not think that it would be possible in a realistic, political sense for a Cabinet to conduct all its business openly unless it had decided to do no business at all.

Human Rights Act 1998

Lord Skelmersdale: asked Her Majesty's Government:
	Whether they have any plans to amend the Human Rights Act 1998.

Baroness Ashton of Upholland: My Lords, we will not leave the European Convention on Human Rights, and we will not repeal the Human Rights Act, but we are reviewing the way in which human rights legislation is being applied. We will look to see what is required in particular to safeguard public safety.

Lord Skelmersdale: My Lords, I am grateful for that Answer. Will the Minister, in the course of the review, consider the possibility of Ministers giving reasons when they signal that a particular Bill being put before Parliament conforms to the Human Rights Act, so obviating the constant correspondence that appears to go on between departments of state and the Joint Committee on the subject?

Baroness Ashton of Upholland: My Lords, I very much value the work of the Joint Committee on Human Rights. Indeed, having appeared before it, I can say to the House that it performs a very important function. Its opinions have certainly performed an important function for your Lordships' House. The requirement on Ministers is to do exactly what we do—to signal that we are providing legislation that is compatible with the Act.

Lord Marsh: My Lords, it seems perfectly sensible to keep the Act but, given the concern throughout the country about some of the decisions relating to it, I find it incomprehensible that the Minister should say that no changes are to be made.

Baroness Ashton of Upholland: My Lords, I said that we were reviewing the way in which the Act operated in the light of recent cases, as noble Lords are aware.

Baroness D'Souza: My Lords, does the Minister agree that at the heart of the Human Rights Act lies an interest in what the public actually want and, indeed, what others' rights are, and that many groups have hugely benefited from the Act including, for example, disabled groups, victims of domestic violence and the elderly? Does she also agree that recent adverse publicity about the Act has been due largely to a lack of understanding of it, as well as its misapplication, rather than its content?

Baroness Ashton of Upholland: My Lords, I agree with a great deal of what the noble Baroness has said. The Human Rights Act is for all of us. Its purpose is to enshrine in law some of the things that we hold dear. As I have said, part of the purpose of the review is to see whether, in implementing the Act, we have actually got it right.

Lord Goodhart: My Lords, the Human Rights Act was one of the great achievements of the first Parliament of the present Prime Minister and, of course, we mainly have to thank for that the noble and learned Lord, Lord Irvine of Lairg, who I am glad to see has just taken his place. Is it not ironic that, in his third Parliament, the Prime Minister seems to regard the Human Rights Act as a tiresome inconvenience? Does the Minister agree that, once you start tinkering with the parts of it that you do not like, you undermine the whole Act with all the protections that it brings to the fundamental rights of all of us?

Baroness Ashton of Upholland: My Lords, I, too, pay tribute to my noble and learned friend for the work that he did in the first Parliament. I have certainly never heard the Prime Minister speak of the Act in those terms. The European convention enshrines in its effect the fact that one of the Government's primary obligations is to protect everyone within a country's borders, and it is right and proper, when implementing any legislation, to continue to be sure that it is implemented properly and that it affords the rights and responsibilities that the legislation suggests.

Lord Tebbit: My Lords, have the judges been getting it wrong?

Baroness Ashton of Upholland: My Lords, I would not comment on the judiciary, who perform an incredibly important function in our society. The noble Lord will be aware of the Rice case, which my noble and learned friend the Lord Chancellor has commented on, as noble Lords know. There were issues of concern, and the inspector indicated that we should examine the way in which that particular group was interpreting the Human Rights Act. That is important.

Lord Foulkes of Cumnock: My Lords, does the Minister agree that the noble Lord, Lord Goodhart, has completely misinterpreted what the Prime Minister has said? The Prime Minister is unhappy about the workings of the Act because it appears that the human rights of alleged offenders are given more consideration than those of victims. The human rights of everyone must be considered, but those of victims must be considered even more than those of alleged offenders.

Baroness Ashton of Upholland: My Lords, my noble friend alludes to the fact that the protection of individuals and public safety are at the heart of the European convention. In looking at the implementation of such legislation, we have to be clear that that is being well looked after.

Lord Maclennan of Rogart: My Lords, when the Minister says "the way that we are applying the Act" or "the way that the Act is being applied", is she seeking to cover up the fact that the Act is being applied by the judges and that criticism of the way in which judges apply any law is an inappropriate action for those in executive office? If there is an outturn that is unacceptable to Parliament, of course it is reasonable to seek to amend the law, but there has been no suggestion in what the Minister has said that that is what she proposes. Why is she dressing up her, or the Prime Minister's, hostility to the judiciary in the way that she is?

Baroness Ashton of Upholland: My Lords, I am not dressing up anything to anyone. I have attempted to make it perfectly clear that in the current review we have sought to look at the implementation of very important legislation that has at its heart issues of public safety and ensuring that we provide human rights for our citizens. It is right and proper that we should do so. There is no hostility in my remarks against anyone. It is important that one continues to look at those issues, which is what we are doing.

Lord Campbell-Savours: My Lords, is it not true that the wider public greatly welcome the initiative to which my noble friend has referred?

Baroness Ashton of Upholland: My Lords, I think that the wider public have a great deal of time for what is in the Human Rights Act. I have tried to indicate in my responses that the Human Rights Act is about everyone and about the way in which we are enabled to live in our society. In that context, the public are concerned to make sure that we are taking seriously the issues that I have indicated—public safety and their rights—and that we make them paramount.

Baroness Wilcox: My Lords, following the question of the noble Lord, Lord Campbell-Savours, does the Minister accept that the public perception of the Human Rights Act is of a charter allowing serial killers to possess pornography in their cells, hijackers to profit from their crimes and terror suspects to remain in this country?

Baroness Ashton of Upholland: My Lords, I do not think that that is the perception of the general public.

Noble Lords: Oh!

Baroness Ashton of Upholland: No, my Lords, I do not. Perhaps I may make it clear that some of the issues—for example, pornography in cells—are absolutely untrue. That never happened. There is a degree of a problem with the Human Rights Act with the myths that surround it. The Human Rights Act is about the way in which all of us live our lives. Of course, in the courts, you will see particular issues tested at the margins of that—it is right and proper that we should do so. We should ensure that we have addressed those issues. That is the way in which we should consider the Act and the way that, I think, the people of this country consider the Act.

Baroness Whitaker: My Lords, does my noble friend not agree that what the noble Baroness, Lady Wilcox, has described is largely the media perception, particularly the tabloid media perception, of the Human Rights Act? In fact, if you look at what the Human Rights Acts has actually been used for, you can see that it has more often been used by ordinary people for ordinary things in their daily life, such as the treatment of older people in hospitals, people with learning disabilities, orphans and so on.

Baroness Ashton of Upholland: My Lords, the Human Rights Act is very important for ordinary people, as I have tried to indicate. I agree with my noble friend absolutely. I refer, for example, to the care of the elderly and to making sure that people are treated properly by public authorities. Dignity and respect are fundamental principles, which are what the Human Rights Act is about.

Baroness O'Cathain: My Lords, perhaps the Minister will explain, because it has been mentioned twice now, what or who the "ordinary people" are?

Baroness Ashton of Upholland: My Lords, I hesitate to say that we are the ordinary people, but in a sense we are. Any one part of our society should see the Human Rights Act as something that is important to it.

The Earl of Onslow: My Lords, does the noble Baroness agree with the concept of tinkering with the Human Rights Act? The present Government are completely and utterly untrustworthy where ancient British liberties are concerned.

Baroness Ashton of Upholland: My Lords, we are very careful.

Divorce and Maintenance Law

Baroness Deech: asked Her Majesty's Government:
	Whether, in the light of the House of Lords judgment on 24 May in the cases Miller v Miller and McFarlane v McFarlane, they have any plans to introduce legislation to reform divorce and maintenance law; and, if so, what is the nature of those plans.

Baroness Ashton of Upholland: My Lords, the Government have no plans to introduce legislation to reform the law on divorce and spousal maintenance.

Baroness Deech: My Lords, I thank the Minister for that reply. Does she not agree that the regrettably increasing number of divorcing couples need clarity and certainty in making their financial arrangements and that they should be able to organise their financial affairs without incurring excessive costs and debilitating disputes, which the current law often gives rise to? Does she acknowledge the widespread concern that there is now a disincentive for people with assets to enter marriage or even cohabitation, if similar law is to be extended to cohabitants, as has recently been proposed? Will the Government now legislate to make prenuptial agreements enforceable, thereby falling into line with the rest of Europe and ensuring that post-divorce settlements are based on well understood and widely accepted principles?

Baroness Ashton of Upholland: My Lords, the noble Baroness has put several questions to me. First, let me make it clear that the number of decrees absolute granted from 1978 to 2005 has remained at broadly the same level, so we do not have a huge increase. Secondly, we agree that it is important that the courts are able to take into account the circumstances of couples at the tragic point in their lives when they are divorcing. Thirdly, in its proposals on cohabitation, the Law Commission is looking to provide a safety net, no more and no less.

Lord Renton: My Lords, will the Government bear it in mind that there is really no scope for reforming divorce law but that maintenance law could be relaxed?

Baroness Ashton of Upholland: My Lords, I am not sure that I entirely understand what "relaxed" means in this context.

Lord Goodhart: My Lords, we welcome the Government's decision to refer the rights of cohabitees to the Law Commission, but, as the rights of cohabitees are necessarily linked at least indirectly to those of married couples and civil partners, would it not be a good idea to include in the Law Commission's review the rights arising on the dissolution of a marriage or civil partnership? Given that it has been 10 years since the passing of the Family Law Act 1996, which unfortunately turned out to be a failure, is it not time to revisit the issue?

Baroness Ashton of Upholland: My Lords, the Law Commission is consulting and has published a consultation paper. As I have indicated, the purpose of that is to provide a safety net to ensure that we avoid unfairness when considering long-term cohabiting partnerships, in particular those involving children, whether they end in separation or death. The noble Lord will be able to comment on the consultation paper and put forward his views.

Lord Northbourne: My Lords, can the Minister give an assurance that any review will take account of children where they are involved in a marriage or partnership?

Baroness Ashton of Upholland: My Lords, the Law Commission is conducting the consultation. In the context of civil partnerships, the Government do not have a review.

The Lord Bishop of Norwich: My Lords, is it not time to review the entire range of financial incentives and disincentives to marry, including tax allowances for married couples, so that government support for marriage can be demonstrated through our system of taxation as well as in a host of other ways?

Baroness Ashton of Upholland: My Lords, I am not sure that, when people marry, their first priority is to consider their financial circumstances or taxation. In all they have done, this Government have been keen to support families, especially the children.

Viscount Bledisloe: My Lords, will the noble Baroness explain to the noble Lord, Lord Goodhart, that two people who live together voluntarily and on an equal basis are cohabiters and not cohabitees?

Baroness Ashton of Upholland: My Lords, I think that the noble Viscount has done it for me.

The Earl of Listowel: My Lords, what is the trend of the success rate in obtaining maintenance, once it has been granted? That may go slightly beyond the Minister's brief. To what extent are children receiving the full financial support that they have a right to?

Baroness Ashton of Upholland: My Lords, that question goes beyond my brief and even beyond my department. However, I will endeavour to find out as much as I can and write to the noble Earl.

Government of Wales Bill

Lord Evans of Temple Guiting: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.
	House in Committee accordingly.
	[The CHAIRMAN OF COMMITTEES in the Chair.]
	Clause 93 [Legislative competence]:

Lord Thomas of Gresford: moved Amendment No. 60:
	Page 51, line 2, leave out from "competence" to end of line 24 and insert "unless it relates to one or more of the reserved matters specified in Schedule (Reserved matters)"

Lord Thomas of Gresford: The founding fathers of the United States, when they put together the American federal constitution in the latter part of the 18th century, had it right: they preserved the legislative competence of the state assemblies which were part of the federal United States. Since that time, this country, in granting independence to our dominions, to Australia and to Canada, has followed that pattern: the legislative competence remains with the state assemblies but powers are reserved to the central or federal parliament. Indeed, as recently as post war, a similar type of constitution was introduced in federal Germany so that the Lander Parliament has legislative competence and certain reserved matters, such as defence, foreign affairs and macroeconomic management, are dealt with centrally by the federal government.
	In 1978, when the Labour government under Prime Minister Callaghan introduced the Scotland Act, they reversed the situation and, in granting in that Act primary powers to a Scottish Parliament which the Act was to create, they gave defined fields to the Scottish Parliament and left the overall legislative competence with the Westminster Parliament. That, of course, was changed in the Scotland Act 1998 and, for the first time within the United Kingdom, the Scottish Parliament was granted full primary powers and matters were reserved to the Westminster Parliament in the areas that I have mentioned—defence, foreign affairs, macroeconomic management and so on.
	The same happened with Northern Ireland. Under the Northern Ireland constitution, even though we have been faced with a non-functioning parliament or Assembly, full legislative competence was granted to Northern Ireland subject only to reserve powers being retained in Westminster.
	My amendment poses the question: why is Wales different? Why should Wales be treated in the way it is? The usual argument put forward by those who believe that the Welsh Assembly should be strictly confined to defined fields is that there is no separate body of law or separate courts in Wales. Whereas Scotland has a separate judicial system which survived the Act of Union in 1705 and a separate body of law based very largely upon the common law as it developed in Scotland, that is not the position in Wales. But that argument did not seem to strike any chord with the Labour government in 1978.
	Northern Ireland, on the other hand, a creature of the Government of Ireland Act 1920, when partition was introduced, at that time had no distinctive, separate courts or separate legislation. Two separate systems of law have developed on the island of Ireland, with the northern part of it, Northern Ireland, serving a population of only 1.5 million as opposed to the nearly 3 million in Wales.
	So it is perhaps not a very strong argument that Wales does not have a separately organised legal system. It is inevitable that Wales is already developing a separate system of laws as it stands. For example, secondary legislation passed by the Welsh Assembly has to be separately interpreted. Clause 79 shows that the secondary legislation passed by the Welsh Assembly has to comply with Community law and with, via Clause 80, human rights law. If a dispute arises, it is for the courts to interpret whether such legislation is compatible with Community law or human rights law. It so happens in Wales that counsel has been appointed by the Welsh Assembly to appear in judicial review so that, when a problem arises, it is not necessary for counsel to go back to the very beginning of the Welsh separate legislation as it is developing, and matters can be taken forward in court, preferably before judges who know what they are talking about and who are familiar with Welsh devolution, by counsel which is also familiar with, and experienced in, that field.
	That is the position with secondary legislation. The Bill grants powers to the Assembly to pass primary legislation, which by its very nature will differ from the primary legislation passed at Westminster. That, too, will require separate interpretation. For example, Part 2 of Schedule 5 reveals that new criminal offences will exist in Wales, provided that the sentence in a magistrates' court does not exceed 51 weeks or that, in a trial on indictment, it does not exceed 12 months. My point is that a separate system of law is emerging in Wales with barristers, solicitors and judges who are familiar with it. Ironically, moves are in hand to try to curtail the Wales and Chester circuit, which has existed since medieval times and the reign of Henry VIII, when the assizes first circulated in Wales. The plan is to remove Chester from the circuit so that we will have a Welsh body of barristers. Therefore, there is no feasible argument to defeat my proposition in this amendment that full legislative competence should be given to the Welsh Assembly, but that there should be reserve powers, just as in Scotland. What I am seeking for Wales is that which this Parliament has already granted both to Scotland and to Northern Ireland.
	An obvious area in which there should be legislative competence for a future Welsh Assembly is home affairs. If the Home Office is not fit for purpose, as a Cabinet member of this Government seems to think, it seems extraordinary that it continues to try to centralise. Nowhere in the whole body of government has there been greater opposition to devolution than in the Home Office. Whereas it would be sensible for a Welsh elected Assembly or parliament to take decisions about how Wales is to be policed, about how many police forces there should be, about how Wales is to be served by the prison department and about how probation is to work in Wales, the Home Office has always resisted that sort of thing. For example, recent consultation with the Assembly over the amalgamation of police forces led to a simple pronouncement from the Home Secretary, who said that the four police forces would be amalgamated regardless of what the Assembly and the people of Wales thought: it was to be imposed. That is the sort of thing that we seek to put in the Bill—legislative competence on a wider scale.
	The Government may say, "You cannot have legislative competence that goes beyond executive competence. In other words, you cannot expect Ministers to legislate in areas for which they have no executive responsibility". It is a good argument. However, the Bill gives us an opportunity to make a start, to put us on a parity with the other parts of the United Kingdom, to introduce a constitution that is the same in the United Kingdom as in the United States and in our former dominions where federal constitutions have been introduced.
	I do not imagine that I will persuade your Lordships that such a radical change to the Bill should be made now. However, I beg to move the amendment on the basis that this is a fight that continues.

Lord Kingsland: Does it follow from the logic of the noble Lord's argument that he would be a supporter of an English parliament? Perhaps I can leave him to reflect on that.

Lord Thomas of Gresford: Perhaps I may answer that. Our party is for devolution in England, but I am quite happy for the English to stay as they are because of the signal advantages that devolution brings to Wales and to Scotland over the English regions. If the English do not want devolution, I am sorry for them, but it is a matter for them.

Lord Kingsland: So the answer is that the noble Lord, Lord Thomas of Gresford, would approve of an English parliament?

Lord Thomas of Gresford: Yes.

Lord Kingsland: The noble Lord has, as he always does, put forward a cogent case for his amendment. We find ourselves unable to support it, for one very simple reason: we are opposed to the whole of Part 3. It would plainly contradict that approach if we were to accept an amendment to Schedule 5, because it is incorporated in the whole of Part 3.
	For my part, if the amendment were introduced by a referendum in Wales, it would seem a wholly appropriate and logical conclusion for the future of government in a devolved Wales—if the people of Wales accepted that referendum. Otherwise it is a matter that the noble Lord, Lord Thomas, will have to accept will not be supported from these Benches.

Lord Evans of Temple Guiting: As we have heard, the amendments in this group would change how the Bill defines the matters on which the Assembly could legislate, at first by Assembly measure and then, after a referendum, by Assembly Act. One effect of Amendments Nos. 60 and 61, applying as they do to Part 3, would be to confer all legislative competence on the Assembly immediately. That would be entirely inconsistent with the incremental approach that the Government propose in Part 3. Indeed, it would be tantamount to giving the Assembly primary legislative powers, something which the Government believe would require a referendum, a view shared by the noble Lord, Lord Kingsland.
	I hope that noble Lords opposite will understand that as a matter of principle I am unable to accept the amendment. However, I take the noble Lord's point that the battle must continue. He and I have had this discussion in a number of Welsh Bills and I admire the way in which he continues to push forward the notion of further and more rapid devolution of powers to Wales. As I said, however, the Government have a view on this, which I have stated a number of times. The course we have set is the one we wish to follow.
	All four amendments raise the issue of how to define the Assembly's legislative competence. There are two ways in which this can be done. Either the matters on which the Assembly can make legislation are specified in the Bill, or the matters on which it cannot make legislation are specified. The former is the approach that we have taken. This was broadly the approach followed in the Scotland Act, although the Bill before us today is more intelligible in that it uses plain language and avoids references to specific enactments whenever possible. The latter approach, of specifying matters outside legislative competence, was adopted in the Scotland Act 1998, and is the approach proposed in this amendment. This approach was also adopted in the Northern Ireland Act 1998, with some refinements.
	The Government had an open mind on which approach to take, and chose the approach taken in the Bill for technical legal reasons which were set out in the evidence given to the House of Commons Welsh Affairs Committee and the Constitution Committee of this House.
	As the noble Lord, Lord Thomas, pointed out, England and Wales is a single legal jurisdiction, and if the Assembly were able to make general legislation on any matter except those which are expressly reserved—like the Scottish Parliament or Northern Ireland Assembly—it would lead to the gradual emergence of a different and separate Welsh jurisdiction unless further, and potentially very complex, reservations were included in relation to matters such as the principles of civil and criminal law. The same complexities did not occur in relation to the Scotland Act, as Scotland already had a separate system of law in 1998.
	I do not expect the noble Lord, Lord Thomas of Gresford, to agree with me but the Government's view is that the practical consequence of these amendments would be the need for different systems of legal education, different sets of judges and lawyers, and different courts. In order to avoid this, the better solution legally is to follow the approach of the Bill and limit the legislative competence of the Assembly to specified matters.
	In addition, this has the benefit of being clearer for everyone. If any Bill were to list all the matters which were to be outside the Assembly's legislative competence, it would be a much more complex list than was required for the Scottish Parliament, simply because it would require complex exceptions on non-devolved matters such as criminal and civil law.
	Liberal Democrat spokesmen in another place explained that one of the motives for their similar amendment was their wish to leave the Bill open to the possibility of devolving further fields of competence to the Assembly. If any similar motive should lie behind this new schedule, I would like to reiterate the Government's clear intention that this Bill is about deepening devolution, and not broadening it. We are giving the Assembly more legislative power, but within the boundaries of the current devolution settlement.
	Clause 94, in addition to providing for matters relating to one or more of the fields in Schedule 5 to be added, also allows new fields to be added, so the Bill is already sufficiently flexible to accommodate the possibility of devolving further fields of competence to the Assembly. The Bill makes provision for the addition of new fields of competence to Schedule 5 via the Order in Council procedure specified in Clause 94.
	I do not expect the noble Lord, Lord Thomas of Gresford, to agree with what I have said, but I hope that, in the light of the explanation I have given, he will feel able to withdraw the amendment.

Lord Livsey of Talgarth: I seek to add to the impeccable logic of my noble friend. I am sure that he will address the points on the legal system which the Minister has made. However, Amendment No. 61 would replace Schedule 5 with a new schedule, which would specify reserved matters and those matters which are not reserved. Indeed it does, as the noble Lord said, make the Assembly into a similar body to the Scottish Parliament.
	Most people in Wales are concerned that whole areas will be subject not to the logic of primary legislative powers but to the managerial style of the Government, who bring in Orders in Council to get round some of the problems that arise. As my noble friend has said, the legal system in Wales is developing as time goes on. I can back him up in saying that there are strong voices in the legal profession in Wales who want a much more developed legal system in Wales to deal with the developing legislative system that is emerging via the Assembly. What concerns many people are the initiatives, particularly in those areas that impinge on primary legislation in education, health, agriculture—though some parts of the agricultural bodies have already been devolved—and local government. There are other issues such as Europe, broadcasting and transport and, as my noble friend has said, there is the whole issue of the imposition of a centralised solution for police forces in Wales.
	The record is that since devolution it has been an extremely long and at times tedious process to get even very few parts of primary legislation that affect Wales through Parliament in Westminster. The ratio is roughly one to eight for Wales, compared with the primary legislation that has gone through the Scottish Parliament in the same time. That is a very unsatisfactory state of affairs. Maybe the managerial system of Orders in Council will produce—as I am sure it will—a hastening of the primary legislative procedure through this Parliament to benefit Wales but, as we know, there are a tremendous number of hurdles in the way. The Secretary of State and the veto powers of both Houses of Parliament are in the way of achieving many of the desirable primary legislative objectives of the National Assembly for Wales. I strongly support what my noble friend has said. I believe that Orders in Council are a managerial system and it would have been far better to have the straightforward competence of primary legislative powers for the Welsh Assembly.

Lord Roberts of Llandudno: I support the amendment. I have three brief points to make. I am very surprised that the Conservatives are against this move. In our debates on the powers of this House, for example, the argument is always not to clip the authority of this House, because the less responsibility that it has the less attractive it will be for people to come here to try to influence the legislative procedure of this Parliament. If that is the case for the House of Lords, is not the argument the same for the Welsh Assembly? If we have an Assembly that is restricted in its powers and apart from Orders in Council gains hardly any new powers in this Bill, does not the same argument apply? Those who could be of such value in that Assembly will not be attracted to take part in its deliberations because its powers will be so limited.
	In 1979, when we had the first referendum in Wales, we lost out. The people of Wales did not want to respond at that time to that move to have an Assembly for Wales. But by 1997 people had changed their views. They had moved ahead in their thinking, and voted—albeit by a tiny majority, but a majority it was—to move ahead with the Assembly. I give credit to the Government for how they responded immediately to that request from the people of Wales. Now we have a development of thinking and support in Wales for a stronger Assembly with the powers suggested in the amendment. For those reasons, the Labour Government and the Conservative Opposition should support the amendment.

Lord Crickhowell: After hearing that speech and the remarks of my noble friend, I hope that when we come to Part 4 the noble Lord will enthusiastically support this party, which basically says, "Let's get on with it and have a referendum. Let's make it easier to have a referendum". Then we entirely agree with the proposition advanced from the Liberal Democrat Benches. I was glad to hear what he said.
	The noble Lord, Lord Thomas of Gresford, loves to take us back in history. On this occasion, he took us back to the 18th century. The last time we were here, he took us back to some remarks of the great Lord Salisbury with which he disagreed. It is always rather dangerous to go such a step. It tempted me to make a few inquiries and I discovered that, in the first Home Rule debate, immediately after Lord Rosebery had succeeded as Prime Minister and leader of his party, he said that,
	"before Irish Home Rule is concluded by the Imperial Parliament, England as the predominant member of the partnership of the three kingdoms will have to be convinced of its justice and equity".
	It was not a remark that went down very well with the Celtic fringe of the Liberal Party at the time. Indeed, it led to the almost immediate and crushing defeat on the subject, because the Prime Minister had given an English veto. Listening to the noble Lord, Lord Thomas of Gresford, I wondered what his position was going to be as we move down this route. No doubt I was also prompted by the arrival of my noble friend Lord Baker of Dorking in his place, as he has recently raised the whole issue with his Bill, which is now in another place.
	I look forward to Part 4 and make it clear that, when we get there, the Conservative Party will give a great deal of support to the Liberal proposition. However, we cannot do so on this messy and confused part of the Bill. I hope that, when the time comes, I will have the noble Lord's support on the amendments that I will move later this afternoon.

The Earl of Mar and Kellie: If the people of Wales wish to proceed at a different speed towards greater devolution than the Government of the day wish, how would they be able to acquire a referendum? Would the Government be happy to receive a petition from the people of Wales, presented to the House of Commons asking for a referendum?

Lord Fraser of Carmyllie: I have considerable sympathy with the proposal of the noble Lord, Lord Thomas, because I thought that the original Scotland Act contained some serious errors. Trying to list what were going to be the powers of the Scottish assembly was so confusing that those of us who are lawyers thoroughly enjoyed ourselves working out which bits were still within the remit of Westminster and which were to be within the power of the Scottish assembly. The solution that the Government arrived at in the Scotland Act 1998 was an elegant one. It was a much better idea to say, "These powers will be reserved to Westminster and everything else will rest within the competence of the Scottish Parliament".
	I was never very much in favour of devolution to Scotland, and I cannot say that anything done subsequently has either restored my faith or encouraged the Scottish people to believe that a good job is being done. Nevertheless, if we are to alter the constitution, it would be appropriate to provide symmetry between the constituent parts of the United Kingdom. If the Scottish Parliament has powers to legislate on anything except a reserved matter, it would be appropriate for a Welsh assembly or parliament to have a similar range of powers. There would be no confusion. We would all know, when we are dealing here with matters that are reserved for the whole of the United Kingdom, that we are not dealing with matters that may relate to a bit of Wales or a bit of Scotland, and we would know precisely what was going on. For that reason, it would be appropriate to achieve that symmetry.
	I have much sympathy with the idea that if we are going to introduce a powerful assembly or parliament in Wales in such circumstances, a referendum should be held to determine the views of the people of Wales. That seems a sensible idea and I do not really understand why there should be any opposition to that.
	The noble Lord, Lord Thomas, concentrated on the fact that there is a single legal system in England and Wales. That is, of course, correct. However, if he considers, say, the National Health Service, he will know that there are very different arrangements in Wales. As I understand it, the Welsh Assembly last year voted to abolish prescription charges. That is not the case in England. The Scottish Parliament is also considering such a proposal. Given that that issue affects a large number of people, we must consider that we no longer have a single national health service, but a number of national health services. If that is to be the way that such matters are organised, there should be symmetry between the constitutional arrangements in different parts of the United Kingdom.

Lord Thomas of Gresford: I thank the Minister for the measured and courteous way in which he responded to my amendment. I also thank all noble Lords who have spoken for their support. I refer in particular to the noble and learned Lord, Lord Fraser of Carmyllie, whose experience in Parliament, in the courts and as Lord Advocate is very helpful to your Lordships when considering matters of this sort.
	I am pleased that we agree that the idea of bolting on bits and pieces to the legal competence of the Welsh Assembly is highly unsatisfactory—that is, that we should from time to time in incremental stages take this bit and that bit and simply say through an Order in Council, "Well, you can now legislate on this or on that". It is a very unsatisfactory solution. I agree with the noble and learned Lord that the solution proposed for Scotland in 1998 was much better.
	I do not accept the argument about there being a single legal system for England and Wales. I tried to address that when I moved the amendment and to point out that a corpus of Welsh law is developing which does not apply in England. In the early days of our devolution discussions—perhaps as long ago as 1997—I suggested that the Court of Appeal should sit in Wales and also that divisions of the Divisional Court should sit there to deal with administrative law. I do not suppose that this has anything to do with what I said but subsequently the Court of Appeal sat in Wales and so did the Administrative Court. It is highly appropriate that that should happen because we do not want a system whereby judges with absolutely no experience of devolution or Welsh legislation come to Wales and are presented with a completely new problem and new legislation. It is inevitable that a separate system will grow up, as the noble and learned Lord, Lord Fraser, pointed out, just as has been the case within the National Health Service. We regard this as such a strong matter of principle that I intend to test the opinion of the Committee.

On Question, Whether the said amendment (No. 60) shall be agreed to?
	Their Lordships divided: Contents, 56; Not-Contents, 134.

Resolved in the negative, and amendment disagreed to accordingly.

Lord Kingsland: moved Amendment No. 60A:
	Page 51, line 21, leave out subsection (7).

Lord Kingsland: I can deal with this amendment very briefly. It expunges Clause 93(7) from the face of the Bill. The subsection reads as follows:
	"For the purposes of this section the question whether a provision of an Assembly Measure relates to one or more of the matters specified in Part 1 of Schedule 5 is to be determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances".
	What does that subsection add to the existing rules on interpretation, practised by the High Court? In other words, in what way will the courts have to change their approach to statutory interpretation to conform to Clause 93(7)? I beg to move.

Lord Evans of Temple Guiting: As we have heard, Amendment No. 60A would remove Clause 93(7), which is included to help interpret whether a particular provision in an Assembly measure is within the Assembly's legislative competence. There is nothing unusual about it, either; it is modelled on a similar provision in the Scotland Act 1998. If a question arises as to whether a provision in a measure relates to a matter in Schedule 5, it is to be decided by considering the purpose—"the pith and substance" or "the true nature and character"—of the provision. The effect of the provision must be considered in the light of all circumstances.
	To illustrate the idea of "pith and substance", we could take the example of restricting smoking in enclosed public spaces. The substance of the matter would be public health, because the purpose was to improve public health and cut deaths from lung cancer, heart disease and so on, caused by passive smoking. This would be a defence against any challenge that it was really about licensing because it applied to licensed premises and imposed conditions on publicans, or that it was about employment law. I use this example because, when it was given in the Commons, the response from the shadow Attorney-General was:
	"The Minister's example was a very good one, absolutely on point and has clarified the matter completely".—[Official Report, Commons, 23/1/06; col. 1250.]
	The provision also cuts both ways: it could help in deciding whether something was outside the Assembly's legislative competence, as well as within it.
	If this provision did not exist, the Assembly could be severely hampered in its ability to enact legislation. While it is possible that the courts would develop a similar interpretative tool themselves, the absence of this provision would leave unwelcome room for doubt as to how to interpret provisions of Assembly measures. Legal challenges could be brought to Assembly measures which affected, even incidentally, non-devolved matters. Good and innovative legislation could well involve provisions which cut across different subject matters or tackle problems in new ways. This is what the proposed amendment, in our view, would surely hinder. The amendment would greatly increase the scope for legal argument about whether something was or was not within the Assembly's powers.
	Given this explanation, I hope that the noble Lord, Lord Kingsland, will withdraw his amendment.

Lord Kingsland: I am grateful to the Minister, and I recognise the profound intellectual perspicacity of the shadow Attorney-General in another place. Nobody admires him more than I do. However, I shall ask the Minister again the question I posed at the outset: how does this change the approach that the courts normally take? Normally, they start off with the text of a statutory provision, and it is only if that text is unclear that they move on to a purposive interpretation. Am I to take it that that approach, which they would normally use, for example, in cases of judicial review, no longer applies and a new approach now derives from Clause 93(7)?

Lord Evans of Temple Guiting: I have to repeat a point I just made: if this provision did not exist, the Assembly could be severely hampered in its ability to enact legislation. While it is possible that the courts would develop a similar interpretive tool themselves, the absence of this provision would leave unwelcome room for doubt as to how to interpret provisions of Assembly measures. If the noble Lord is not happy with that explanation, I undertake to write to him at considerable length within the next two or three days about this matter.

Lord Elystan-Morgan: For once, I find myself in support of what the noble Lord, Lord Kingsland, said. All the subsection does is to set out the golden rule of law as far as statutory interpretation is concerned. If the ordinary grammatical meaning of the words is unambiguous, that is the interpretation. If there is ambiguity, one is entitled to look further afield and the boundaries of doing so are set out in the subsection with which we are dealing. It adds nothing to the golden rule of statutory interpretation, and it detracts nothing from it, as I understand it.

Lord Kingsland: I am more than grateful to the noble Lord for his intervention. It reinforces the importance of the Minister putting on paper the thoughts that he has sought to unpack in the Chamber this afternoon. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 93 agreed to.
	Schedule 5 [Assembly Measures]:
	[Amendment No. 61 not moved.]
	Schedule 5 agreed to.
	Clause 94 [Legislative competence: supplementary]:

Lord Kingsland: moved Amendment No. 61A:
	Page 51, line 29, leave out paragraph (b).

Lord Kingsland: In moving Amendment No. 61A, I shall speak also to Amendment No. 61B. Amendment No. 61A refers to Clause 94(1)(b) and Amendment No. 61B refers to Clause 94(2). These amendments are essentially probing amendments. In order to put them into context, I need to summarise what Part 3—I hesitate to say "does", and shall merely say, "seeks to do".
	Part 3 seeks to establish the law underlying Assembly measures. Assembly measures are defined in Clause 92. An Assembly measure can only be intra vires what will subsequently become the Act if it is within the range of a matter which itself is within the range of a field, both of which are set out in Schedule 5 to the Bill.
	Clause 94 (1) and (2) provide a mechanism for adding to both fields and matters contained in Schedule 5. We learn from Clause 94(1)(b) that the schedule may be amended to add a new field or vary the scope of an existing field. That power is modified by Clause 94 (2) which says that no field can be modified if the modification does not fall into a function that is already exercised by a Welsh Minister. I saw the Minister nodding so I take it that he is with me so far. My question is: what are these powers that are currently exercised by Welsh Ministers that go beyond the fields stipulated in the Bill? I beg to move.

Lord Evans of Temple Guiting: Amendment No. 61A, on which I believe Amendment No. 61B is consequential, would prevent any addition to, or alteration of, the fields listed in Schedule 5 by Order in Council under Clause 94. Such additions or modifications to those fields could be achieved only under another UK Parliament Bill.
	The amendments seek to preclude any possibility of the Assembly's legislative competence being expanded into new fields. The Bill does not confer any legislative competence on the Assembly, other than in respect of those matters listed under "Field 13: National Assembly for Wales". Any decision to confer additional legislative competence on the Assembly, or to add to the fields in which it may acquire such competence, will be taken on a case-by-case basis, with the agreement of both Houses of Parliament.
	The amendments would mean that even if the Welsh Ministers were to acquire new functions in a field other than those listed in Schedule 5, the Assembly would not be able to seek to gain legislative competence in that field through an Order in Council under Clause 94. That would be unnecessarily inflexible. The Government's intention is that if functions in a new field are transferred to the Welsh Ministers then the Assembly should have the ability to acquire legislative competence over those matters, subject to Parliament's consent.
	As drafted, the Bill provides that a field cannot be added to Schedule 5 if the Welsh Ministers, First Minister or Counsel General have no functions in that field. That is consistent with the policy set out in the White Paper, Better Governance for Wales. Amendment No. 61B would remove this condition.
	It would be unreasonable to limit the potential legislative competence of the Assembly in perpetuity. If Welsh Ministers were to acquire functions in a new field, as they could do under Clause 58 , it would be inconsistent to say that the Assembly should not be able to acquire legislative competence in that field as well. Why should that field be different from all the others? It would still be a matter for Parliament to decide under Clause 94 whether Schedule 5 should be amended in that way, so Parliament would still be in control.
	I hope that what I have said reassures the noble Lord, Lord Kingsland, and that he will feel able to withdraw his amendment.

Lord Kingsland: I am most grateful to the noble Lord for his clarification. I think that he sees the source of my concern. There are already substantial areas of potentially devolved fields under Schedule 5. Is it really necessary to determine what future fields can be exercised under Schedule 5 by reference to functions that are exercised by Ministers and alterable under Clause 58? That is the question. I simply do not understand why such a labyrinthine formula has been devised to extend the scope of the Assembly measures that can be made by the Welsh Assembly. If we are going to add to Schedule 5 in future, surely it would be much better to have a single straightforward rule in one clause, which will subsequently become one section of an Act.

Lord Evans of Temple Guiting: I shall add a few words to what I have already said. The noble Lord has suggested that a field cannot be modified if Welsh Ministers do not have functions in that field. That is not correct, because the limitation relates only to the addition, not to the modification, of fields in Schedule 5.

Lord Kingsland: I apologise if I used the word "modification". It is clear from my proposed amendment to Clause 94(2) that the governing words are, "does not have effect". I regard that ingredient in the clause as crucial to my argument.
	The Minister offered to write me a letter about my previous amendment; and I wonder whether he would kindly do so on this amendment because I am very anxious to know how wide the gap is between new fields and new ministerial functions. These two variables will determine the expansion of the powers of the Assembly. How will they work together both technically and politically? We do not know.

Lord Evans of Temple Guiting: I will be more than happy to write a second letter to the noble Lord, setting out in considerable detail the arguments that I hope will result in him being reassured about his amendment.

Lord Kingsland: I am most grateful to the Minister. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 61B not moved.]

Lord Rowlands: moved Amendment No. 61C:
	Page 51, line 40, at end insert—
	"( ) An Order in Council under this section shall include all of the principal features of the proposed Assembly Measure."

Lord Rowlands: I believe that, since the experience of 1998 and the legislative requirements of the Assembly, there is widespread support to enable the Assembly to gain easier access to legislation than the current arrangements allow. The present arrangements are inevitably about trying to get a couple of Bills into the parliamentary Session and to achieve success for either Wales-only Bills or UK Bills with Welsh-only clauses. We should not dismiss the value of that experience, because there has already been a significant transfer of legislative competence in education and in health through that process, but those who pragmatically wish the devolution process to develop are making the reasonable point that we should find an easier way for the Assembly to fast-track legislation.
	The Richard commission considered aspects of this, and we came up with the idea of framework legislation. Indeed, there is evidence of that in the present NHS Redress Bill, which has gone through this House and in which an important framework clause paves the way. Such a means by which the Assembly might obtain legislative competence in the future may still be one of the routes that will be followed, because it makes sense to do it sometimes in a UK Bill. The Government at least appear, in the Part 3 Orders in Council, to have responded to the general feeling that there should be some way in which they could fast-track Assembly legislation. They have been described in a variety of ways since the novel introduction of such an Order in Council. They have been called an ingenious device, a backdoor means of transferring primary legislative powers or a virtual transfer of primary legislative powers.
	My amendment was prompted by the debate on the nature and character of these novel Orders in Council. What will they look like? What is the nature of their context? How widely or specifically drawn will they be? As they are novel we have no precedents to pursue; therefore, I tabled this amendment to allow the Committee to explore what an Order in Council should contain. My amendment was also prompted by the Government's very helpful effort to give us two mock examples of how an Order in Council would look. Members of the Committee who have followed these issues will know that the Government put forward mock orders for two Bills that have already gone through this House, so that we could compare the Order in Council process to the Bills, which are now Acts, which have gone through.
	The first relates to the Bill to create a Welsh ombudsman covering a whole range of public services in Wales. We were very helpfully given a draft mock order, if this Bill had not gone through, of how an Order in Council would have paved the way for the measure that subsequently would have been drafted and taken up by the Assembly. The mock order was comprehensible, but rather convoluted. Matter 14.1 refers to,
	"The creation of, and conferral of functions on, an office or body for and in connection with investigating complaints about relevant public sector persons",
	When I read that draft order I understood exactly what I was expected to support: to transfer legislative competence to the Assembly to create an ombudsman for Wales.
	I was also informed of the limitations of that ombudsman's role. The draft mock Order in Council included a provision that,
	"at least one-half of the expenditure on the exercise of the person's functions of a public nature in relation to Wales",
	has to come out of the Welsh Consolidated Fund. In other words, it limited the scope of the ombudsman and his role. He or she could not investigate bodies not covered by the provision. That draft order is perfectly understandable and sufficiently informative in content. I could understand what I was being asked to support.
	The second draft mock order covered the Transport Bill that had gone through this House, which enabled me to compare the contents of the measure in the draft order, but I found this one far less satisfactory. This and the other House would have been informed only that various provisions would be required in plans and strategies for transport and that there would be arrangements for the discharge of local party transport functions. Frankly, from that draft order I would not have fully understood the nature of the proposed measure. In particular, I could not have picked up that this subsequent measure would include the groundbreaking provision to possibly finance air services and airport services in Wales. That was of major importance and caused a great deal of genuine discussion, which was not necessarily an argument or controversy but nevertheless of interest. One could not have divined from such a draft order that the subsequent Assembly measure would include such a provision.
	That prompted me to wonder whether we should not at least try to consider what we should expect to be in a draft Order in Council. So the proposals I have put down as a basis for debate, not as an ultimate solution, would ensure that an Order in Council should at least identify the principal features of what would become an Assembly measure. I think that consideration of these issues, in particular the two illustrative examples provided by the Government, prompts the following questions: how much should be included in an order; how much of an indication should be given of a subsequent measure that the Assembly would introduce; and how far should the Order in Council define the terms and limits of the subsequent measure? These are important questions.
	Perhaps I may anticipate an obvious criticism of my proposal. Why, for example, should information be put in an order which, unlike a Bill, is unamendable? Why should Westminster get involved in the substance of subsequent Assembly measures? To those questions I give this simple answer: despite the arguments that Part 3 is in fact a virtual transfer of primary powers, it does not transfer primary legislative powers; both Houses in Westminster remain in legislative control. Ultimately, whether we pass or reject an Order in Council is a matter for the two Houses. Obviously, if we have been asked to pass such an order, we should have some idea of what we are being asked to pass. A clearer indication of what is subsequently to become an Assembly measure is needed.
	I believe passionately that if people wish to move to primary legislative power, Part 4 is the way to do it—through a referendum. As my noble friend Lord Richard and I suggested when I served on the commission, there should be a model for that transfer. In many cases it would possibly include additional Members and, of course, the possibility of an alternative voting system. That I could at least contemplate because it makes sense, but we should answer the critics who say that Part 3 is a back-door way of doing this by saying that we should expect Orders in Council that come before this House and the other place to be specific in their aim, about what kind of legislative competence the Assembly seeks and about the objectives of such competence. I beg to move.

Lord Kingsland: The spirit in which the noble Lord, Lord Rowlands, has moved his amendment is entirely shared by all Members on these Benches. The noble Lord will see that our Amendments Nos. 64A, 64B, 64C and 66A are grouped with his; and I would be interested to know at some stage during the debate what his reaction is to our ideas on filling this undoubted gap.
	Before I turn to my amendments, I have one question about the detail of Clause 94(3), to which the noble Lord's amendment refers. I am focusing on the powers that an Order in Council provides under this clause, which grant either new fields of action or new matters of action to Schedule 5. How is Clause 94(3) relevant? I ask that for the following reason. Clause 94 provides a mechanism for creating new fields and new matters. Subsection (3) gives power under this procedure to the Crown by Order in Council to disapply existing legislation in the United Kingdom, whether it is primary legislation or secondary legislation. Is this not premature, because the transfer of fields and matters does not itself create new law; all it does is expand the vires of the Welsh Assembly to create new law through Assembly measures?
	Where an Assembly measure is approved by the Crown, I can quite understand at the second Order in Council stage, when you have a new law of the land—or, at least, the land in relation to the territory of Wales—that it would be necessary to disapply certain primary legislation and delegated legislation which contradicted the terms of the Assembly measure so approved; but I cannot understand how it could possibly make sense to disapply these measures at the earlier Order in Council stage—because that stage does not change the law of any part of the United Kingdom; it merely provides extra vires to make new laws.
	I put this question to the Minister as a matter of inquiry. In my submission, this notion would be much better placed at a later stage of Part 3 of the Bill and in relation to the second Order in Council stage, not the first. I have not given the Minister warning that I was going to say this because it only occurred to me when I was looking at the text just before the noble Lord, Lord Rowlands, spoke. But, as his amendment is to that part of the Bill, it struck me that it would be an appropriate moment to mention it to the government Benches.
	As I have said, the spirit of our amendments broadly reflects that of the noble Lord, Lord Rowland. We are seeking to establish as thorough a parliamentary procedure as we possibly can to consider the draft Order in Council passed by the Welsh Assembly, together with whatever memorandum the Government produce in support of it. The attitude of Ministers in another place has been to say, "Well, this is all up to Parliament. We will leave it to you. You will have 60 days to sort all this out". I can see the force of the Government saying that it is up to Parliament—after all, they are rightly reluctant to interfere with procedures which are those exclusively of this House and another place—but, given that we are effectively transferring legislative power from both Houses to the Welsh Assembly, I would humbly submit that we might need rather longer than 60 days to consider all the details of the matter.
	That has animated our amendments tabled in this line. We believe that Parliament ought to have up to six months to consider the proposed addition of a field, or of matters under a field, before the 60-day period starts. That six months would give the Government, in seeking to formulate the right order to place before Her Majesty, the opportunity to hear representations from all parts of the United Kingdom, whether or not those submissions are made by lobbying organisations, or by voluntary organisations—of course, voluntary organisations lobby as well—or by vested interests. It would also give the Secretary of State the opportunity to take into account any resolutions about the content of the Order in Council made either by another place or your Lordships' House. Essentially we are engaging with the noble Lord, Lord Rowlands, in his amendment, but we are trying to set out a rather more elaborate procedure than he has done.

Baroness Finlay of Llandaff: I regret that I did not put my name to the amendment of the noble Lord, Lord Rowlands, because his speech clearly expressed the anxieties that exist in Wales about the content of Orders in Council. Anxiety is certainly felt that things will not be spelled out clearly. Whichever of the routes set out by the amendments in this group one takes, I say as someone who is a non-lawyer but who works in Wales and listens to what people are saying that quite a degree of anxiety is felt that Orders in Council will not have their contents sufficiently spelled out and will therefore be inadequately thought through prior to coming before us. The advantage of the noble Lord's wording—
	"all of the principal features"—
	is that it would act as a standard and as a checklist against which different Orders in Council, with time, could be looked at, and it would provide an assurance that what one might call the collateral consequences of legislation had been thought through before we were presented with the outline framework. So I support the principle behind the amendments, although, as a non-lawyer, I am very confused as to what would be the best route to follow.

Lord Crickhowell: We owe a great debt of gratitude to the noble Lord, Lord Rowlands, for raising these important issues in the way that he has. I also strongly support the remarks of the noble Baroness. As I listened to my noble friend Lord Kingsland, I was reminded of the important contribution made in another place by Mr Paul Murphy, who, after all, has great authority to speak on the topic. He made it very clear that he was not at all happy about the adequacy of the arrangements for considering these Orders in Council and what was to be in them. He said that he was not convinced that these arrangements should be dealt with simply by the business managers. He argued that there was a case for the Assembly and Parliament to meet together in a committee structure to look at the arrangements. He said:
	"The arrangements for the Assembly Government, or the Executive as it is likely to be called, and the British Government in terms of working out what happens with the Orders in Council are well defined in the Bill. Checks and balances exist, but there is a gap as far as this place is concerned"—
	he was referring to the other place. He continued:
	"My right hon. Friend the Secretary of State and my hon. Friend the Minister would do well to return to the issue with colleagues, whether it be the Leader of the House or whoever, to consider again whether to establish formally in writing—in Standing Orders, in legislation or wherever—a system by which pre-legislative scrutiny is defined more closely and adequately, and Orders in Council themselves are not limited to one and a half hours' debate upstairs in a Committee. That is not good enough for the issues that we are dealing with".—[Official Report, Commons, 23/1/06; col. 1195.]
	That is another aspect of the limitations, referred to by my noble friend Lord Kingsland, under which we would be operating. Having read the debates in another place, I am not at all clear that there has been an adequate response from the Government on how these matters are to be dealt with.
	The Minister has no doubt been considering very carefully the remarks of the right honourable gentleman in another place and other points that have been raised, including those of the noble Lord, Lord Rowlands, about how we are adequately to be apprised of what really is involved in the orders that come before us. The noble Lord, Lord Rowlands, made it clear that this was a probing amendment and that he was looking for information. It is therefore very important at this stage that we hear a pretty coherent account from the Minister so that we can consider the adequacy of these arrangements when we come to a later stage of the Bill.

Lord Davies of Oldham: We owe my noble friend a debt of gratitude for triggering an important part of the debate on how the Orders in Council and measures are intended to work. I am grateful to him for tabling the amendment. It is part of the constructive work that he has done also on the Richard commission and in the preparation of the White Paper. He has raised important points which I will seek to address as fully as I can while commenting on the additional points made by other noble Lords in support of his amendment. I shall also address myself to the amendments of the noble Lord, Lord Kingsland, who specifically asked whether Clause 94(3) was not premature. I hope that I will be able to address that issue more fully when I deal with his alternative proposal on how these issues should be considered. At the root of that lie both the differences between us and perhaps a different understanding of what the Government are seeking to propose. I hope that the noble Lord will eventually change his mind and appreciate that the Government have the issue right.
	My noble friend recognises in his amendment that scrutiny of the detail of an Assembly measure is a matter for the Assembly itself. What we are discussing here is how detailed the Orders in Council under Clause 94 will need to be and how much information Parliament will have on which to decide whether it should grant legislative competence to the Assembly on a matter. That is the issue that the Order in Council will put before Parliament. As noble Lords have recognised, Orders in Council are not amendable. I hear what the noble Lord, Lord Crickhowell, says about comments in the other place that an hour and a half's discussion elsewhere might not be enough for these orders. That is a matter for both Houses of Parliament to take into account on the question of the scrutiny. It is not for the Government to dictate to Parliament a detail such as that. I am second to none in my admiration for the insight that my right honourable friend in the other place, Paul Murphy, brings to these debates. He may well have a point that wins favour in Parliament—that the normal length of time for consideration of orders may need to be extended when we are dealing with orders of this kind. However, that is a matter for Parliament to deliberate on. It is not for the Government to instruct Parliament in these terms. We are discussing process: the amount of information required and how Parliament obtains that information.
	The key point is that it would be possible for the Assembly to acquire legislative competence under Part 3 only if the Government and Parliament were satisfied of the case for that in each specific matter in which competence was sought. The test for Parliament is whether it will be appropriate in principle to grant the legislative competence to the Assembly. Parliament has the right to ask—in fact, the duty to expect—as much information as it thinks necessary to reach such a judgment. However, we anticipate that that will be provided during the pre-legislative scrutiny of any proposed Order in Council. The Assembly rather than Parliament will scrutinise and decide on the detail and merits of a particular Assembly measure. The question whether the Assembly should be given competence to legislate on a particular matter is an entirely different issue. That, clearly, is for Parliament to consider. That is where the Order in Council is crucial.

Lord Thomas of Gresford: Am I right in thinking that once legislative competence has been granted in a particular field by an Order in Council—in other words, as an addition to Schedule 5—any number of Assembly measures may be brought in succeeding years under that increase in jurisdiction? Consequently, is it not inappropriate for a particular measure to be attached to an Order in Council?

Lord Davies of Oldham: That is precisely the case. Not only might more measures be proposed under the powers granted by a specific Order in Council, but it is not unknown for legislative bodies to change their minds—it is not unknown for legislative bodies to see different majority parties in control, which certainly change their minds on what should be enacted. The Assembly might not just propose other measures under the same range of competence; it might also seek to contradict a measure that had obtained under a previous Administration—the noble Lord is absolutely right about that. Therefore, we cannot conceive of the Order in Council being specific to a measure. That would be so limiting a concept of devolution as to make a mockery of it.
	The Order in Council seeks to create the power of legislation, which the Assembly then follows through. I shall give way to my noble friend as I believe that he will help me even further. He has sought to identify the nature of the process which guarantees that Parliament has sufficient information to carry out this measure.

Lord Rowlands: If there is a subsequent measure beyond the first measure, does that not have to stay within the terms of the original Order in Council, or can it go beyond it? Let us take the mock order on the ombudsman. Would it be possible in a subsequent measure to alter and amend the role of the ombudsman in such a way that it would be different from that which the Order in Council defined?

Lord Davies of Oldham: No, that would not be possible. The Order in Council specifies the area of competence of the Assembly. I emphasise to the noble Lord, Lord Crickhowell, that the area of competence would have been identified. The preparation of the Order in Council would require intensive pre-legislative scrutiny to identify exactly the information that Parliament would need in order to determine the range of competence and the measures which could be carried out under the order. If a measure is put forward that is beyond the competence of the Order in Council governing that area, it would not obtain the support of the Secretary of State. The Assembly would not be so foolish as to waste its time proposing a measure that it would recognise would be ruled out on the ground that it did not have the relevant competence. The case for the competence, and the understanding of Parliament of what it involves, would be assessed in the process of pre-legislative scrutiny prior to the order being presented.
	The noble Lord, Lord Crickhowell, has spoken very articulately on this issue when we have discussed it previously. We all recognise that there are limitations regarding the debate on the Order in Council; I accept that point entirely.

Lord Crickhowell: I am most grateful to the noble Lord for giving way. I take up the rather good example given by the noble Lord, Lord Rowlands, about the transport order. Like him, when I read the example, with a lot of stuff about local government, transport plans and so on, I did not have the faintest idea that it covered the possibility of financing air transport. If you were bringing a Bill before Parliament, the Bill would set out clearly that that was one of the things that you wanted to do. But as I understood the noble Lord, somehow Parliament in the pre-legislative scrutiny stage would have to discover the range of things that the Assembly might do without them being named. That would be difficult unless you had a very clear idea of what the Assembly measure was going to be. There may be an answer to that, but the more I think about the example given by the noble Lord, Lord Rowlands, the more puzzled I am about how Parliament is to find out exactly what the scope of the measure is.

Lord Kingsland: I reinforce that point by saying that it adds further weight, if I may respectfully say so, to the arguments that I was advancing earlier about Clause 94(3), which refers to repealing primary and secondary legislation. The Order in Council under Clause 94 can only transfer vires. The Welsh Assembly may not decide to pass any Assembly measures under those transferred vires—to which I am very happy to have the nodding assent of the noble Lord, Lord Thomas of Gresford—and therefore there would be no disapplication of any existing law. In those circumstances, what on earth is Clause 94 doing in the place in the Bill where it is found?

Lord Davies of Oldham: What the noble Lord is referring to in his mention of Clause 94(3) is implicit also in the approach of the amendments tabled in his name and that of the noble Lord, Lord Roberts. In the Government's view, the Opposition Benches are arguing for proposals that set things back to front. The draft measure attached to the draft Order in Council would be one that the Assembly had had the opportunity to scrutinise. It would be odd if the Assembly was to spend time scrutinising legislation that it did not have the legislative competence to make a decision on. We have got it the right way round; the noble Lord is arguing the case back to front. He is suggesting to the Welsh Assembly that it may be encouraged to propose measures in circumstances where it was not clear whether it had the legislative competence to do so. We are arguing the exact opposite.
	We recognise that the Order in Council must be precise, narrowly defined and clear, because that is how Orders in Council operate, and they are usually brief, succinct and to the point. We also recognise that Parliament will not assent to Orders in Council until it has the information necessary to understand the power that is being sought. Parliament has the right to make those demands. All those issues will be identified in the pre-legislative provisions, so the competence that the Assembly is seeking will be defined first in the documents put before Parliament. Demands for any further information and debate in the pre-legislative scrutiny stage will clearly identify the areas where the Order in Council will obtain.

Lord Kingsland: If I may say so, with great respect to the noble Lord, it is a bit rich of him to accuse the Opposition of having matters back to front. As I said previously in Committee, it is the Government who have matters back to front. Had they organised themselves both intellectually and politically in a better manner, they would have started off with the provisions concerning the transfer of vires and finished with the provisions on Assembly measures. In fact, they have done exactly the opposite.
	Moreover, the Government have added confusion to all this by introducing Clause 94(3), which belongs to the second-stage Order in Council process and not the first. That is precisely why I tabled Amendment No. 64A, which refers expressly to an Assembly measure. It is clear from Clause 94(3) that the clause is intended to change the law. Therefore it was necessary for me to draft an amendment to encompass Assembly measures in Clause 94. I agree that it is completely illogical, but the illogicality is necessary because of the Government's own illogicality, not that of the Opposition.

Lord Thomas of Gresford: I shall give my understanding of this matter. Schedule 5 already contains 20 fields, under each of which the National Assembly for Wales will be entitled to bring in an Assembly measure. Such a measure goes through the Assembly and then, unless the Secretary of State intervenes under Clause 100 and stops it—by making,
	"an order prohibiting the Clerk from submitting the proposed Assembly Measure for approval by Her Majesty in Council"—
	the measure is approved under Clause 101. That is the simple way in which an Assembly measure progresses under any of the 20 fields already in the Bill. Parliament has absolutely no part to play in considering the merits of the policy behind an Assembly measure in an existing field.
	If the Secretary of State steps in to prevent a measure from going through and makes,
	"an order prohibiting the Clerk from submitting the proposed Assembly Measure for approval by Her Majesty in Council",
	that order is,
	"subject to annulment in pursuance of a resolution of either House of Parliament",
	under Clause 100(8). That is the procedure. Clause 94 simply deals with extending those 20 fields to something else—some other area. For example, field 5 is education and training. At the moment, without this Parliament getting involved at all, the Assembly will be able to pass an Assembly measure dealing with education—let us say introducing the 11-plus in Wales. A subsequent Welsh Government could abolish the 11-plus. That is all within the fields of competence in Schedule 5.
	Schedule 5 does not include energy, for example, and there is no competence at the moment for the National Assembly for Wales to introduce, let us say, a Severn barrage. It would be necessary to obtain an Order in Council under Clause 94 to extend the number of fields from 20 to 21 to put energy in, and then for the Assembly to pass a measure, subject to the right or power of the Secretary of State to stop it. I do not approve of this mechanism, particularly the intervention of the Secretary of State to stop an Assembly measure going through, but that is what it is.
	In relation to Clause 94, all that we are really debating is extending the 20 fields that Schedule 5 provides so that there are other fields. When the noble Lord, Lord Rowlands, seeks to have the proposed Assembly measure attached to the Order in Council or information about it, that is quite different. The Assembly may not want to bring in an Assembly measure in a field at the moment; it may seek competence in energy but do nothing about a Severn barrage for a number of years.

Lord Rowlands: I challenge the noble Lord with some trepidation, because he is obviously experienced and knowledgeable in this matter, but I do not think he is right. Surely, the Orders in Council will give the Assembly legislative competence under an existing field. The mock order states:
	"Part 1 of Schedule 5 to the Government of Wales Act 2006 is amended by inserting under "Field 14: public administration"—
	and then follows the ombudsman. It does not extend that field, it allows legislative competence to occur within that field and, therefore, to be delivered through an Assembly measure.

Lord Thomas of Gresford: I hear what the noble Lord said. It indicated just how confused and complicated this mechanism is. The noble Lord may be right. I do not believe that that is what Clause 94(1) says, because the Order in Council is to,
	"amend Part 1 of Schedule 5 to add a matter . . . vary or remove",
	or to,
	"add a new field or to vary or remove any field".
	I thought that that was what we were debating.

Baroness Finlay of Llandaff: Perhaps I may ask the Minister what is probably an unbelievably na-ve question. I am not sure that I understand what harm there is in the amendment, but I see an awful lot of harm in not having specificity that defines the competencies within such an order, because I do not see how an order that does not clearly spell out its various sections and principles could possibly be debated in an hour and a half. The only option, then, would seem to be for that Order in Council to be rejected and to go back to the drawing board, which would create a huge circuitous argument. If there was a requirement to be specific, pre-legislative scrutiny could be more focused and more efficient. I cannot see a requirement in the Bill for that degree of specificity to be provided and for it to be feasible to have a one-and-a-half-hour debate on one of these orders.

Lord Elystan-Morgan: The situation is not entirely free of confusion. So that I can be sure that I understand the position, perhaps the Minister can confirm, first, that extensive delegated legislation powers are enjoyed by the Assembly. Such powers have been inherited from powers, which from 1964 onwards, were from time to time transferred to the office of the Secretary of State for Wales. Those powers are there. They are exercisable at any time that the Assembly wishes to and it does not have to come to this House for any sanction regarding the validity of those powers.
	Secondly, perhaps the Minister can confirm that Part 3, in accordance with the recommendations of the Richard report, allows additions to be made from time to time to the substantial delegated powers that are probably contained in scores of instruments and which are, therefore, additions to the 20 areas of jurisdiction set out in Schedule 5.
	Thirdly, if additional scrutiny was necessary, not in relation to the area of jurisdiction that was being transferred, but to the specific matter within that area, it would create a massive log-jam and make Part 3 a total nonsense. It would be impossible for any Government asking for those powers to spell out the exact situations under which they will be exercised. Situations change and the possibilities are infinite. Am I right about those three fundamental points? I would be fortified if that were the case.

Lord Prys-Davies: I, too, would be grateful if the Minister could clarify a point that arises from the contribution made by my noble friend Lord Rowlands. My question relates to the provision in the order enabling the Assembly to give financial support to the air industry. Let us take that one example. Do I understand my noble friend on the Front Bench to say, "We'll start with the pre-legislative scrutiny and the headings of the order will gradually merge in the course of the discussion between the Assembly Government and the UK Government"? If, in the course of that scrutiny, it emerges that the Welsh Assembly is minded to give financial support to the air industry but the Secretary of State decides that that is not acceptable to the Government's line of thinking, where do we go then? Does that mean that the order cannot include the power to give financial support to the air industry? How does one deal with that practical problem?

Lord Davies of Oldham: I am grateful to all noble Lords, who sought to be constructive and helpful with their interjections, but I particularly appreciate the clarification of the issue by the noble Lord, Lord Elystan-Morgan. He was absolutely right: that is the nature of the proposals in the Bill.
	I want to clarify the point introduced by the noble Lord, Lord Thomas. The fields in Schedule 5 simply identify the areas in which the Assembly may acquire legislative competence. Specific matters must be added to Schedule 5 and then the Assembly will indeed have legislative competence in relation to those matters. The noble Lord, Lord Elystan-Morgan, identified that the proposals with which we are engaged here relate to how the Assembly seeks additions to its competence within those broad fields. We recognise that the basis of the Order in Council, which will define the area in which that competence is conveyed, raises all the anxieties to which noble Lords have given voice in this debate and on previous occasions in this Committee.
	We have made it abundantly clear throughout the passage of the legislation that we place a great deal of emphasis on the pre-legislative scrutiny—probably a greater emphasis than is the case with any other legislation—because we recognise the validity of the point identified by the noble Lord, Lord Thomas; that is, you cannot possibly be too specific and attach a measure of competence to an Order in Council because that would block off all flexibilities and all developments and it would be a restrictive rather than an enhancing measure. It would enhance in the narrow field where a particular proposal was conducted in the context of the Order in Council but it would be so limited as to be a denial of the concept of devolution.
	We are seeking Orders in Council which are bound to be limited in their description and content because that is the nature of Orders in Council, but the parliamentary debate, the understanding of what is at stake in the orders, and the request for information which sustains the case for a proposed enhancement of competence, which potentially will lead to measures by the Assembly, will take place within the framework of the pre-legislative scrutiny. That is why we put a great deal of emphasis on that and why a specific measure would not be attached to the Order in Council.
	However, in the proposals leading to the Order in Council, the definition of the area of competence which was being devolved to the Assembly would be identified. That was the basis of my noble friend's question and of his amendment. Therefore, I hope noble Lords will recognise that the Government seek the most open process possible as it cannot be right that every single measure of the Assembly would need to come before both Houses of Parliament. An Order in Council would be so restrictive and would allow only a very limited measure which had been attached to it in the first instance, a point that the noble Lord, Lord Thomas, sought to identify.
	It is necessary that an Order in Council defines the competence under which future measures can be enacted. As I said in my opening remarks—I hope I was as fair and as open as I could be to the Committee about these issues—the Assembly can change its mind when it changes its administrative direction. Of course, it may change measures within its framework of competence and it may seek to develop measures, which is what the Order in Council should permit. That is why it cannot be restricted to one narrowly defined measure; it has to be a concept of competence. That is the basis of the Government's case.

Lord Crickhowell: I have been listening with the greatest care to what the Minister has said. I find it very difficult to comprehend how this should be managed. I have served on two pre-legislative scrutiny committees, both of which, I believe, did a good job. Of course, they were scrutinising legislative proposals. We looked at the legislation that was put forward and we examined it in detail. The noble Lord has been saying that the Assembly will not know what legislative proposals it intends to put forward within an area—it cannot possibly know as it may not yet have thought of the idea. A priority may appear later and it will then decide to bring forward a legislative proposal. It defeats me how one can have pre-legislative scrutiny across a black hole when one has no idea what the legislative proposal will be.
	With great respect to the noble Lord, Lord Elystan-Morgan, I believe he is wrong in this respect. He described perfectly accurately the extensive powers that the Secretary of State used to have but which the Assembly now has, but we are not dealing with those executive powers. Here we are dealing with proposed new legislative powers to give the Welsh Assembly entirely fresh executive powers, powers that it may not even have thought of at the moment. It seems to me that we are stepping over a great chasm without any real knowledge of what we are doing.

Lord Elystan-Morgan: My understanding is that the situation is not so fundamentally different from what it was in the old days, if I may say so. When the noble Lord was Secretary of State for Wales, he exercised many powers of delegated legislation. Slots were left in Acts of Parliament, and he was responsible for filling them at his discretion. He did not lose sleep over that, and it was not necessary to come back to this House or to the House of Commons for sanction.
	Once that authority had been transferred to him, he had complete jurisdiction within the boundaries of that transfer. I see no fundamental difference, unless the powers added are in a wide field. If, however, the fields are limited, there will be an infinite possibility as to any particular measures within those limited boundaries; not so very different from the situation that previously obtained.

Lord Richard: I shall add briefly to the Minister's troubles by trying to be helpful.
	I want to look at this concept of pre-legislative scrutiny. To a certain extent, I follow the noble Lord, Lord Crickhowell, and my noble friend Lord Elystan-Morgan. I do not particularly like it but, as I understand it, the idea is that there should be pre-legislative scrutiny of the terms of the Order in Council, but there would be none in respect of any Acts passed by the Assembly under the powers conferred upon it by the Order in Council. "Pre-legislative scrutiny" is rather an ill-chosen phrase to describe that process—which almost amounts to negotiation between the Assembly in Cardiff and the Government in London—as a result of which the scope of the powers to be devolved is arrived at. The Government in London would then agree to put that in the form of an Order in Council, and would bring it to the House.
	We have got too bogged down in looking at the mechanism of the Order in Council rather than the substance. The mechanism may indeed not be the most appropriate way of doing this, but that is what the Government have chosen. Given that, we must be perfectly clear as to what it entails. A situation in which a mechanism demands that the Assembly put before Parliament the detailed terms of a measure that it proposes to pass does not make sense. Either you devolve, or you do not. If you do not, so be it. In that case, Parliament has the right to pass whatever legislation it likes. But if you want to devolve certain competences to Cardiff, the way in which they are exercised has to be determined in Wales and should not be subject to legislative scrutiny by the Westminster Parliament. The function of the Westminster Parliament is to give the Assembly the competence. Once the Assembly has the competence, it exercises it. You cannot half devolve in this sense: you either give it to them or not. If you do, you do so in the knowledge that it has competence, authority and jurisdiction to exercise it as it thinks fit.
	This is almost a classic discussion between the devolutionists on the one hand and the restrictionists on the other. I am unashamedly a devolutionist, but some of the language I have heard in some of the contributions to this debate almost leads me to believe that people are saying, "Yes, we will accept this, but it is not really going to mean anything". What it will really mean is that Westminster will have control over it; first, by the Secretary of State if he wants to; and, secondly, by a system of pre-legislative scrutiny, allowing Westminster to scrutinise the details of the measures that the Assembly will pass under the devolved competences. That would be wrong, contrary to the purposes of this Bill and certainly incapable of being presented as further devolution to Wales.

Lord Rowlands: I am extremely grateful to all those who have contributed to the debate. I was not sure that I had triggered such a variety of conundrums and discussions. It is important, because this is a novel device and use of an Order in Council to achieve a perfectly proper purpose: an enhancement of the legislative competence of the Assembly in specific areas.
	If I may respond to my noble friend and to the noble Lord, Lord Crickhowell, I do not think that the noble Lord, Lord Crickhowell, is right. I do not think that it would be possible to bring forward an Order in Council in a vacuum; that is, without the Assembly having already determined in general terms what it intends to do with the power that it seeks through the Order in Council. Let us go back to the two mock orders and take not only them but also the accompanying document. There would be a two or three-page memorandum from the Welsh Assembly Government on the proposed legislative competence in the field of public administration. It would describe the purpose of the order and would set out what the Welsh Assembly Government were seeking; for example, to have the legislative competence to wind up the various ombudsmen to have one ombudsman. That memorandum would be attached to any draft Order in Council. That is the process. An Order in Council will not just seek competence in areas of public administration; it will be tied to a specific proposal. These two mock orders make that clear.

Lord Crickhowell: If what the noble Lord now says is right, I am, at least in part, reassured. But my remarks were prompted by what the Minister said from the Front Bench. I thought he was clearly indicating that we might have proposals that had not been contemplated at the point when the order was put forward. We are dealing with a wide field, and proposals that people have not contemplated might be brought forward. If that is not so and that is not possible, I am happy to be reassured.

Lord Rowlands: I hope that when my noble friend replies he will make clear that any draft Order in Council brought to both Houses at Westminster will have a context that, in many cases, will be quite specific. It will be a specific proposal to create, for example, one public ombudsman or to create powers under transport to achieve certain specific purposes.

Lord Thomas of Gresford: I refer to energy, which is not one of the fields at the moment. Suppose the Welsh Assembly Government decided that they would like to control energy policy in Wales. We could have a debate in both Houses of Parliament about whether it would be a good or bad thing for that to be devolved. But the Welsh Assembly Government may have in mind building a nuclear power station here, digging another pit there, putting some offshore wind farms in Cardigan bay and introducing the Severn barrage. But they will not put all those things forward when they say to Parliament that they think it is time that the Welsh Assembly Government should have control over energy policy. So the debate—the pre-legislative scrutiny—would be whether it is a good thing for the Welsh Assembly Government to have control over energy policy, not about what they are going to do.

Lord Rowlands: The noble Lord, Lord Thomas of Gresford, does not distinguish between the issues in the Bill. My noble friend referred to "deepening, not broadening". The process by which, as I understand it, the Assembly would gain a new field—that of energy—is available by amending Schedule 7, or whatever it is. It is a separate process. It is nothing to do with Part 3 in respect of expanding legislative competence under the existing fields. The noble Lord's example of energy does not apply.
	As I understand the process—and this is why pre-legislative scrutiny comes into play—when an Assembly Government wish to propose a draft Order in Council, behind and alongside it will be a very specific proposal to legislate. In the Assembly Government's mind there will be, not a detailed draft Assembly measure, but the outline of the proposals, almost like the heads that parliamentary draftsmen have, showing the kinds of things that they would like to do. The Order in Council would then transfer that legislative competence to them. I hope that my noble friend will tell us that that is the case. The question of how specific or unspecific Orders in Council are is extremely important to the wider argument that is being used about whether Part 3 is a backdoor way of transferring primary legislative power. It is important for us to clarify that.
	The noble Lord, Lord Kingsland, invited me to comment on Amendment No. 64B. It is an unbelievably cumbersome process—six months and 60 days for every Order in Council—for an Assembly Government to have to go through these lengthy procedures in order to legislate. No, I do not support that. Mine is a simpler view. We should decide that if we pass an Order in Council that that would give the Assembly the power to go ahead and introduce a measure, and not try to bring it back or restrict it subsequently, unless of course during the debates on the provision the border is crossed beyond the terms and limits of the Order in Council.

Lord Kingsland: I am grateful to the noble Lord. He has, indeed, responded to my amendments as I requested, and it would be churlish of me to do other than thank him most profusely. Perhaps I may make one observation. The object of the six-month period of pre-legislative consideration was in response to what Ministers in another place requested. They deliberately said that they do not want to set down a specific timetable in another place—in your Lordships' House—because it is entirely a matter for us. A number of noble Lords around the Chamber have said that 60 days for an instrument that cannot be amended for the transfer of perhaps substantial chunks of power from this Parliament to the Welsh Assembly is simply not enough, especially if you engage with the apposite observation of the noble Lord, Lord Richard, that what will shape the Order in Council is a deal between the Welsh Assembly and the Government, not a deal between the Welsh Assembly and the Westminster Parliament.
	In those circumstances, I should have thought it imperative that the House would have wanted a period of time before the order was tabled in its final form to consider representations from a whole range of parties, some political and some industrial and commercial. I have suggested that the period should be six months, but I am perfectly happy to take views around the Chamber about what the length of that period should be.
	I know that the noble Lord is impatient to get back. I make one final reflection on his observation about our amendments. He asks: why have such an elaborate procedure every time there is an Order in Council? I think it unlikely, even with the devolutionary enthusiasm that the Government are exhibiting, that there will be that many Orders in Council under Clause 94 because most of the devolved power is already there in Schedule 5. There will be a few Orders in Council on fields, and I should think rather more on matters, but we will not be bombarded with them, and it will not clog up the procedure of your Lordships' House if we take a little time to look at them and take representations from outside. I am most grateful to the noble Lord.

Lord Rowlands: I am grateful to the noble Lord, Lord Kingsland, for his response. When my noble friend said there were two groups, the devolutionists and the restrictionists, I am not sure where he was putting me—in the middle. It is an uncomfortable position to be in the middle. Nevertheless, I think that Amendment No. 64B in the name of the noble Lord, Lord Kingsland, definitely falls in the restrictionist class. I do not consider myself a restrictionist, although I am somewhere between my noble friend and the restrictionists.
	I raise one other important issue. In the background to the debate on what the content of an Order in Council should be is the question of how these Orders in Council will be scrutinised. My noble friend rightly placed heavy emphasis on pre-legislative scrutiny. I serve on the Constitution Committee. It produced a report and evidence on the Bill. A major concern of the Constitution Committee was how this House will be involved in the process of pre-legislative scrutiny. The Secretary of State who gave evidence to us said that it had to be concurrent with anything that might happen in the other place. What kind of process are we going to use? The Government's response to our report was that it was in the hands of the House. I do not know who the House is. Is it the usual channels, or is it the Procedure Committee? I ask all those who have spoken today on the role of this House and pre-legislative scrutiny how we will handle this new process, whether it is in six months, in 60 days or within whatever timescale is available. The Constitution Committee poses that question, and I believe that the House has to answer it.
	I have found this debate to be extremely useful and important. I am still not totally clear about this, but I will read what my noble friend has said about how much information the Order in Council will contain. I simply put on the record—I do not know how much support one would have for it—that Orders in Council should be specific requests to legislate on specific aspects of a field, and we should be very squeamish about receiving orders that are widely drawn and minimally worded. If my noble friend can assure us in this debate—presumably we will have a debate at some stage on Report—I shall be more than happy not to press my amendment to a vote. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kingsland: moved Amendment No. 62:
	Page 51, line 41, leave out subsection (4).

Lord Kingsland: Amendment No. 62 would remove Clause 94(4), which reads:
	"An Order in Council under this section may make provision having retrospective effect".
	My first question to the Minister is: what does this mean in an operational context? I am prompted to ask him because of what Mr David Mundell said in another place on 23 January 2006—at col. 1266 of the Official Report—in a debate about the Government of Wales Bill. Mr Mundell quoted from the Explanatory Notes, which purport to show why the provision is needed. The notes say that,
	"where there has been a legal challenge to the validity of an Assembly Measure based on doubt as to whether its provisions relate to a relevant matter, an Order in Council may restore legal certainty about the Measure by amending a matter to remove any ambiguity".
	Do the Government really intend, in legal proceedings in the courts of this land, to clarify by exercise of this retrospective power a matter that is in issue? That is totally against our constitutional traditions, and it may affect the existing rights of one party or another. I make that observation particularly in the context of the observations I made earlier about Clause 93(7). I do not know whether the Minister was in his place when the noble Lord, Lord Evans of Temple Guiting, responded to a point about the interpretive approach that the courts are supposed to take to legislative matters under Part 3. In my submission, there is real danger of a conflict between the exercise by the courts of their power under Clause 93(7) and the exercise of the Government's powers under Clause 94(4). Whatever your Lordships will make of those preliminary submissions, I am sure all your Lordships will agree that we ought not to encourage retrospective legislation under our constitutional arrangements. Therefore, any attempt to introduce a retrospective element in a Bill ought to be studied most carefully and most critically. I beg to move.

Lord Davies of Oldham: The Committee will not be surprised that the noble Lord, Lord Kingsland, alighted on this issue and identified it in his Amendment No. 62. I want to respond in a considered way to his arguments and anxieties, because if one concept sets alarm bells ringing among all those who hold democracy dear, it is that of retrospective legislation jeopardising our citizens after they have acted but before they knew that they were acting against the law. I will reassure the noble Lord on that score as best I can.
	His amendment would remove the power for an Order in Council amending Schedule 5 to have retrospective effect. This was substantially discussed in the other place. The Government have already explained the circumstances in which they envisage the power being used, both in the Explanatory Notes, to which the noble Lord, Lord Kingsland, referred, and in the debate of this important issue in the other place. I emphasise the fact that we are talking not about a measure having retrospective effect and that might have an impact on the citizen, but about an Order in Council amending Schedule 5 having retrospective effect. It is an absolutely crucial distinction. Such an Order in Council does not confer any rights or impose any obligations on any person. Rather, it amends the parameters of the Assembly's legislative competence to enact measures. The starting point is an Assembly measure that has been enacted and that relates to a matter in Part 1 of Schedule 5.
	Let us assume that there is some ambiguity in the wording of the matter, which is later picked up, and that, as a result, it is not clear that it was within the Assembly's competence to pass the measure. By the time the issue has been picked up, the provisions of the measure may well have come into force. I am sure the Committee will recognise that it would be inequitable for persons who have carried out actions in good faith as a result of obligations placed on them by the measure to be in a position where the measure itself calls the legal basis for those actions into doubt. This could be put right in order to give proper and full effect to the Assembly's and Parliament's intention by an Order in Council that could retrospectively amend the description of the matter to which the measure relates and remove any doubt about the validity of the measure.
	There are safeguards that will prevent the misuse of this power, because noble Lords will have recognised the significance of it. Before laying the Order in Council before the House, the Secretary of State would first want to ensure that it was compatible with the convention rights in the Human Rights Act 1998. Furthermore, Parliament would have to approve the Order in Council. Of course, Parliament would not do so if the order produced inequitable effects.
	I reassure the Committee that the power will be used very rarely and not without careful consideration of the grounds for doing so. In most cases, I expect the pre-legislative scrutiny of proposed Orders in Council to draw out any deficiencies in the drafting of matters to be added to Schedule 5, so that there will rarely be any need to rely on this provision in Clause 94(4) to make retrospective provision. But it is necessary to have that power to be used against a background of careful parliamentary scrutiny necessarily compatible with human rights. Nevertheless it could be that in very rare circumstances such an order would be necessary. That is why we have made provision for it in the Bill. I hope that the noble Lord accepts the Government's arguments.

Lord Kingsland: I am most grateful to the noble Lord for his reply. The circumstances in which concerns could arise might be, for example, where a local authority exercises a compulsory purchase order in an area which is a field under Schedule 5 for which certain matters have been set out, but under which the opponent to the compulsory purchase order alleges that no authority exists for issuing the order in the first place. There is litigation either under the statutory provisions under the compulsory purchase order legislation or by judicial review: things are moving in a certain direction in that litigation and it suddenly becomes clear to the Government that the court is likely to find against it—that the Assembly measure exceeds the vires laid down in Schedule 5.
	In those circumstances, will the Government at that moment exercise the retrospective power that they have under Clause 94(4) and clarify the legislation in such a way that the doubt of the compulsory purchase order is resolved by it being declared intra vires? If so, I would suggest to the Minister that that is a particularly glaring and undesirable example of the breach of the principle of the separation of powers in this country, quite apart from the principle of retrospectivity. It is that sort of situation that worries me.

Lord Davies of Oldham: I understand the anxiety of the noble Lord. He will also recognise that if it worries him, it would worry many Members of this House and the other place if an Order in Council was introduced which would so grievously affect the rights of people engaged in litigation. I want to give the noble Lord the obvious assurance on that. We do not expect this power to be used, except very rarely. It certainly would not be used in circumstances where Parliament would clearly recognise that the operation of such an order would be a manifest injustice to someone involved in litigation in those circumstances. So it would not be done during proceedings. The Government would argue the case in such proceedings, if necessary. But if the court decided that technically there was a gap in competence which Parliament had not intended, there could be an Order in Council which would be used to achieve properly that which Parliament had intended in the first place.
	Of course, Parliament would be scrupulous in its concern about any individual who might be wrong-footed and disadvantaged in such circumstances, but the noble Lord will recognise that it would be necessary to have that reserve power. Otherwise, we could be in a position where Parliament had clearly intended that a certain circumstance obtained. The court would have identified that Parliament had not done that as effectively as it ought, which would be the basis of any retrospective order, and only within that limited framework.

Lord Kingsland: I am most grateful to the Minister for his response, which partly reassures me because I think that the Minister is genuinely worried about the situation. It partly alarms me because of the latter part of his intervention. In the last resort, it is the courts that interpret the will of Parliament. If the courts say that there is a gap and the Minister in Wales does not have the vires to issue the compulsory purchase order, for that particular dispute, that ought to be that. I can quite see that the Government may then take a political view that the compulsory purchase order ought to have covered that situation, in which case it would make laws for the future dealing with that matter. But the notion that it could, by legislation, change the decision of a court made on existing rights I find profoundly disturbing.
	In the period of reflection that the noble Lord will undoubtedly have to endure between the Committee and Report stages of this Bill, I hope that he will be good enough to consider this matter further. I do not say "again" because I like to think that his thoughts are evolving as he speaks. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Livsey of Talgarth: moved Amendment No. 63:
	Page 52, leave out lines 2 to 4.

Lord Livsey of Talgarth: This amendment would remove Clause 64(5)(b), which specifies that an Order in Council has to be approved by "each House of Parliament". This removal would give the National Assembly the approval function and, in so doing, the competence to approve an Order in Council unilaterally, as well as being a democratically elected body. We believe that the Assembly should have that power.
	Amendment No. 65 in the group would remove subsections (7) and (8) which give the Secretary of State 60 days to lay a draft Order in Council before both Houses of Parliament. As Members of the Committee can see, Amendment No. 65 replaces "60 days" with "30 days" in order to lay a draft Order in Council before the Clerk of the Assembly, which means that that would not be between both Houses of Parliament. It then would be for the Clerk to submit the draft Order in Council to Her Majesty in Council, and not the Secretary of State.
	The Secretary of State should not have the role as currently drafted in the Bill, which I believe harps back to the debate that we had particularly on Amendment No. 61C. In our view, as devolutionists, there is a reluctance to let go. It was evident from a previous debate that there is a danger that there will be so many hurdles for the Assembly to cross that the devolution project could be in jeopardy in Wales. People will not accept these matters of how high will the next hurdle be before we can get some legislation. There is a huge matter that the Secretary of State of whatever party may step in and prevent certain legislation going forward, although that is the will of the democratically elected body. As a democrat I have very considerable reservations about that situation, as does my party.
	The Assembly itself is a democratic body and the right place for the power to reside. There is no doubt whatever about that.
	Amendment No. 68 is a simple proposal to adjust the period of delay from 60 days to 30 when a draft Order in Council is laid before Parliament and notice given in writing to the First Minister. I beg to move.

Lord Kingsland: I want to make sure that I have understood properly what the noble Lord, Lord Livsey of Talgarth, is trying to do. His amendment seeks to leave out paragraph (b) of Clause 94(5), which states,
	"having been so approved, has been laid before, and approved by a resolution of each House of Parliament".
	The noble Lord has nodded his assent. It seems to follow from this that the Westminster Parliament would have no role in deciding whether or not a function ought to be devolved to the Welsh Assembly under Schedule 5. Whether or not a function should be devolved to the Assembly under that schedule would be entirely a matter for the Assembly itself, in discussion with the Secretary of State. Have I understood correctly what the noble Lord seeks here?

Lord Livsey of Talgarth: The noble Lord is correct in principle in that specific description.

Lord Kingsland: To take an example that would carry the direction of my argument to its limit, let us suppose that the Welsh Assembly decided that it wanted to acquire foreign affairs as a new area of operation and that it drafted an Order in Council in the Assembly to that effect. If it could convince the Secretary of State—I admit it is highly unlikely—that that was a desirable thing to do, Parliament could do absolutely nothing to stop it because Parliament would no longer be a part of the Order in Council process.
	If my illustration is a correct, if somewhat exaggerated, reflection of what the noble Lord, Lord Livsey, is seeking to do, at best this is a vast transfer of power in the United Kingdom from Parliament to the Secretary of State; and at worst it would give the Welsh Assembly, provided that there is a compliant Secretary of State, the power to engage in any governmental activity it likes. So far the noble Lord, Lord Livsey, has been nodding in agreement, so it looks as if my interpretation is not far off the mark.

Lord Livsey of Talgarth: The noble Lord has taken the argument to its absolute extreme to pray in aid the force of his approach to this issue.

Lord Kingsland: Admittedly.

Lord Livsey of Talgarth: Perhaps I may say to the Minister that for the sake, for example, of improving relations with the European Union, there may be a lot of mileage in Wales for an Order in Council of that kind because in some areas we deal directly with the EU. Indeed, there is official Welsh representation at the EU. However, the noble Lord's extreme argument, in those terms, does not hold water.

Lord Sewel: The amendment may or may not be attractive, but one thing it clearly is not is devolution. The whole concept of devolution rests on retaining the sovereignty of the United Kingdom Parliament. It is that Parliament, therefore, that has the responsibility and the power to decide which subjects and powers are devolved. It is not the power of the subordinate parliament to assume powers that it wishes on its own accord. So it is a novel constitutional approach, but I am not sure where it would fit in the array of constitutional arrangements that are possible, be they devolution, federalism or whatever. However, it is clearly not an argument that is at all consistent or compatible with any model of devolution.

Lord Evans of Temple Guiting: I am grateful to the noble Lord, Lord Kingsland, for putting much better than I could the Government case against this amendment, and to my noble friend Lord Sewel for underlining the point. Amendment No. 63 would remove the requirement for a draft Order in Council amending Schedule 5 to be approved by both Houses of Parliament. I really do not agree that the example raised by the noble Lord, Lord Kingsland, is extreme. He argued that if the Welsh Assembly decided that it wanted to determine its own foreign policy, it would be able to do so. That is the problem. Under the current devolution settlement, Parliament has a central role in approving additional powers for the Assembly. That is what the people of Wales voted for in the 1997 referendum. The noble Lord, Lord Livsey, speaks of being a good democrat; we are adhering to policy voted on by the great Welsh public in that referendum.
	The Bill provides under Part 3 the requirement that all Orders in Council be approved by both Houses of Parliament. Surely it cannot be right that Parliament is written out of the process of approving draft Orders in Council. Indeed, as I have said, to do so would represent a fundamental change of the settlement voted for by the people of Wales in 1997. It would not be sufficient for the Assembly to vote itself additional powers; it is Parliament that has to decide whether it is appropriate to confer further legislative competence on the Assembly.
	Amendments Nos. 65 and 68 would require the Secretary of State to pass any draft Order in Council which has been approved by the Assembly to the Clerk of the Assembly within 30 days of receiving it. Amendment No. 65 provides that it is then for the Clerk to submit it for approval by Her Majesty in Council. The Assembly would therefore be in the position of voting itself new powers with little opportunity for Parliament or the Secretary of State to challenge it. It is not clear to us what benefit might be derived from the 30-day period in which the Secretary of State holds the draft Order in Council, but is powerless to do anything with it other than acting as a messenger by delivering it to the Clerk.
	I hope that, in the face of a constructive onslaught from all sides of the Committee other than from his own Benches, the noble Lord may feel able to withdraw the amendment.

Lord Livsey of Talgarth: I may not be able to withdraw the amendment for the reasons given by the Minister, but I might be able to do so for other reasons. I said in response to the noble Lord, Lord Kingsland, that in fact in certain circumstances the Assembly would do this in conjunction with the Secretary of State. To my mind something would be wrong if the Secretary of State did not have some kind of link with the Westminster Parliament because he is its servant. The amendment is deeply probing in nature which has exacted the kind of reaction I had expected. However, we are very concerned about the powers of the Secretary of State to delay Orders in Council for 60 days when it is perfectly reasonable to request that the process should take 30 days, and would take into account those days when Parliament does not sit.
	We are trying to ease the passage of legislation originating in the Assembly through, in this case, Orders in Council.
	I think the debate has illustrated why we decided earlier today to look at the principles of devolution. Indeed, perhaps subsequent debates have exposed some of the limitations of the Order in Council process, which is the alternative to it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 64 had been withdrawn from the Marshalled List.]
	[Amendments Nos. 64A to 65 not moved.]
	[Amendment No. 66 had been withdrawn from the Marshalled List.]
	[Amendment No. 66A not moved.]
	[Amendment No. 67 had been withdrawn from the Marshalled List.]
	[Amendment No. 68 not moved.]
	Clause 94 agreed to.
	Clauses 95 and 96 agreed to.
	Clause 97 [Proceedings on proposed Assembly Measures]:

Lord Kingsland: moved Amendment No. 69:
	Page 53, line 25, leave out subsection (2).

Lord Kingsland: Amendment No. 69 and other amendments in the group—Amendments Nos. 70, 71 and 72—deal with the internal proceedings of the Welsh Assembly on considering Assembly measures. They are, to a considerable extent, probing amendments and I hope that they will not arouse great passions during the course of the debate.
	Amendment No. 69 relates to Clause 97(2), which states:
	"Subsection (1)"—
	which deals with the normal procedure—
	"does not prevent the standing orders making provision to enable the Assembly to expedite proceedings in relation to a particular proposed Assembly Measure".
	If you have a well recognised legislative process—which we have, of course, in your Lordships' House—it is quite a serious matter to derogate from that for one reason or another. It is true that, in the case of emergency legislation, law can pass through both another place and your Lordships' House very quickly. This is because the measures are uncontroversial—or, at least, uncontroversial in the sense that everyone recognises their necessity, whether or not they are completely happy with the detail. But, in doing this, we go through each recognised procedure very swiftly and forgo the traditional time limits between stages which are otherwise an essential part of the ability of the House and another place to reconsider the position before the next stage is embarked upon.
	Subsection (2) suggests that "a proposed Assembly measure"—and it does not seek to define further what it means by that—could be subject to something called "expedited proceedings"; but we do not know what those expedited proceedings are. Would they involve missing out a stage stipulated in Clause 97(1), or would they simply involve collapsing the time differences between the various stages? I think we need, if not more detail on the face of the Bill, a clear explanation from the Government of what this entails.
	Amendments Nos. 70 and 71 seek to amend parts of Clause 97(3). We have no quarrel with the substance of subsection (3)(a) and (b), and we leave those paragraphs intact. Our concerns are with subsection (3)(c), which deals with private proposed Assembly measures. Why should private proposals be dealt with differently from public Bills? We know, of course, that private proposals have a particular political status but, as far as your Lordships' House is concerned, once a Private Member's Bill is on foot, it has to go through all the stages that a public Bill would go through in your Lordships' House. So what is it about private proposals that ought to give them a privileged legislative procedure which public Bills do not have?
	Of course, one does not know how this provision will be interpreted. It may be that those who draft the standing orders in the Assembly will place greater hurdles in the way of private Bills than those placed in the way of public Bills. I do not know what is likely to be contemplated and it may well be that the Minister cannot give a complete answer. The Minister looks surprised that he cannot give a complete answer. We are always surprised when he cannot give a complete answer; but, in this case, I, myself, would not be surprised because this is a matter that is within the compass of the responsibilities of the Welsh Assembly. I should be most grateful if the Minister would be kind enough, to the extent that he is able, to explain in more detail what lies behind these provisions. I beg to move.

Lord Crickhowell: I briefly intervene because, as on previous occasions, I turn to the Explanatory Notes on the Bill, provided helpfully by the Government, which contain an explanation in the case of private Bills. The notes state that,
	"proposed Measures procedures . . . are likely to include an opportunity for individuals affected to make representations to the Assembly, as in the case of private Parliamentary Bills".
	But there is absolutely no comment at all on, or explanation for, the expedited procedures referred to in the first of my noble friend's amendments. The Government have not chosen to deal with the matter in the notes and therefore there seems to be a very important reason for having a clear explanation.

Lord Evans of Temple Guiting: I shall attempt to give that clear explanation. It would be unusual for the Bill not to include a provision for how the Welsh Assembly would react when faced with an emergency. I absolutely take the point of the noble Lord, Lord Kingsland, that the Bill does not specifically state "only for emergencies" and that that is something that could be abused, but I hope that if I give an explanation at least we will see where the Government are going.
	Amendment No. 69 would prevent the Assembly from creating a fast-track legislative procedure for certain proposed Assembly measures necessary in an emergency. As it stands, the Bill allows the Assembly to make provision for this, if it wishes, via standing orders. We are very sympathetic to the concerns of the noble Lords, Lord Kingsland and Lord Crickhowell, to ensure that all proposed Assembly measures receive proper scrutiny.
	Clause 97(2) does not circumvent that. As I have said, it is intended to make allowances for emergencies where there is simply not enough time to pass a proposed Assembly measure via the usual legislative process to ensure that statutory procedures do not impede the Assembly, which is a democratically elected legislature, from acting in a proper and timely fashion to respond to circumstances that may arrive very rapidly. All legislatures require emergency procedures for law making. In this House, for example, the Elections Act 2001 was passed within a week when the date of local elections needed to be moved because of the foot and mouth outbreak. It should be noted that the same provision appears in Section 36 of the Scotland Act 1998. The Assembly will be able to ensure through standing orders that the expedited procedure is applied only in relevant circumstances and with the proper controls.
	It has been argued in another place that cases of urgency will arise only in relation to subordinate legislation made by the Welsh Ministers. It is not for us to make assumptions about what level of detail the Assembly will want to include in Assembly measures. We cannot assume that the Assembly will never enact a measure that might need to be amended urgently. It is prudent—I stress "prudent"—to include some degree of flexibility for the Assembly to be able to adjust its procedures should it see the need to do so, as can other legislatures.
	Amendments Nos. 70, 71 and 72 would remove the Assembly's discretion to make provision in its standing orders for the handling of proposed private Assembly measures. The Committee will no doubt be aware that both this House and the other place operate under a wholly different set of standing orders when considering proposed private legislation. The complex and often highly specialised nature of proposed private legislation means that having different provision in standing orders is not only appropriate, but also, arguably, necessary. For example, the need to allow those affected by a particular scheme to petition Parliament on the details of the scheme requires a wholly different type of procedure from that adopted in relation to public legislation. The same reasoning would apply equally to the Assembly. It would therefore be anomalous for the Assembly to be denied the discretion to put appropriate procedures in place for proposed private legislation. Indeed, it would arguably inhibit the Assembly's ability to ensure effective scrutiny for such matters.
	Amendment No. 89 is similar to Amendment No. 69. It would prevent the Assembly creating in its standing orders a fast-track legislative procedure for certain Bills in certain circumstances. As we said with regard to proposed Assembly measures, accelerated procedure for legislation in emergency situations must be possible. A similar provision already exists in Section 36(2) of the Scotland Act. Both Houses of Parliament also permit proceedings on emergency legislation to be expedited. The Assembly will be able to provide safeguards against the abuse of this procedure in its standing orders. I hope that the noble Lord, Lord Kingsland, is reassured by this explanation. He said that his was a probing amendment.
	I hesitate to say that the noble Lord, Lord Kingsland, may be confusing Private Members' Bills, which are a type of public Bill and subject to the normal procedures, with private Bills, which are not.

Lord Kingsland: I am aware of the distinction between Private Members' Bills and private Bills; but it is always reassuring to be reminded that I am still aware of that distinction. To me, at any rate, the drafting of Clause 97(3)(c) does not make that distinction clear, but I am happy to have had it made and am correspondingly reassured.
	I am most grateful to the Minister for his response to the amendments. I shall think very carefully about what he said. We all accept that circumstances of emergency will occur from time to time. It is vital not to leave out any stage but, at the same time, there should be a provision, or at least a constitutional convention, that allows the time distances between each stage to be collapsed in a recognised emergency. I agree that it is extremely difficult to define an emergency. It would be not only foolhardy but futile to try to furnish the legislation with such a definition. I am sure that everybody in the Welsh Assembly, like everybody in your Lordships' House and another place, is replete with common sense and will recognise an emergency when they see it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 70 to 73 not moved.]
	Clause 97 agreed to.
	Clauses 98 to 100 agreed to.
	Clause 101 [Approval of proposed Assembly Measures]:
	[Amendments Nos. 74 to 77 not moved.]
	Clause 101 agreed to.
	Clause 102 [Referendum about commencement of Assembly Act provisions]:

Lord Crickhowell: moved Amendment No. 78:
	Page 57, line 12, leave out "two-thirds" and insert "51 per cent"

Lord Crickhowell: In moving the amendment, I shall speak also to Amendments Nos. 79 and 85. I have already informed the noble Lord, Lord Roberts of Llandudno, that I will refer to his noble friend Lord Thomas of Gresford during my speech, if only because he has made a number of singular contributions in our debates so far. I understand that he has left to attend some important function—I am sure that it is important—and I hope that, on reading the debate, he will not feel as did Lord Rosebery, whom I have already mentioned once today and who, at the end of the Home Rule debate, was profoundly disgusted with himself because he had stopped speaking after one hour under the misapprehension that he had been speaking for two.
	Ministers will be glad to hear that I do not intend to speak for either one hour or two hours, but this is a very important point in our consideration of the Bill. It is the moment when we move from Part 3 to Part 4, which provides for a referendum on whether we should go forward to full and proper devolution of the kind that has been urged on the Government repeatedly from the Liberal Democrat Benches and from elsewhere in the Chamber, including by my own party.
	During our debates on the Bill so far in both Houses, there have been a number of revelatory moments. I suppose that one of the first was the contribution of the Secretary of State in another place on 28 February. He said:
	"I have no doubt that if a referendum were held today, it would be lost".—[Official Report, Commons, 28/2/06; col. 209.]
	That was a pretty extraordinary way of introducing major legislation which contained provisions for a referendum and extensive devolution on the back of it.
	There has been another revelatory moment today. It exposed the extraordinary complexity of this Bill and the unsatisfactory character of Part 3. Again, there was widespread agreement in all parts of the Committee. The noble Lord, Lord Thomas of Gresford, said that the incremental process was a very unsatisfactory solution. He said that he did not approve of the mechanism. He said that it was confused and complicated.
	When we last debated these affairs in Committee, at the Committee's second sitting, the noble Lord, Lord Thomas of Gresford, accepted many of the criticisms that had been made by my noble friend Lord Kingsland about Part 3. On that occasion he again said:
	"Why do we not simply accept that the Welsh Government need expanded powers in order to do their job, and that this is just an ingenious and tortuous device to bring in legislation without having a referendum? We can then argue on that basis".—[Official Report, 3/5/06; col. 531.]
	The noble Lord, Lord Richard, who sadly is not with us now, indicated earlier this afternoon that he did not like Part 3 either.
	So we now move to the alternative, Part 4. The third revelatory moment for me in our proceedings on the Bill was when the noble Lord, Lord Thomas of Gresford, said:
	"We wish to see steps taken that lead towards the goal which I personally have been advocating for something like 42 years. It will take more than this Bill to stop me advocating full powers for a Welsh parliament".—[Official Report, 3/5/06; col. 523.]
	And yet having said that that is what he wanted and that the procedures that we have in Part 3 are highly unsatisfactory in every respect, and having accepted all the criticisms of Part 3, he said that he would be content with Part 3 because it took him a step or two down the road.
	As I heard the noble Lord speak, I thought, "This is really the most extraordinary stance to be taking". After all, not only—and I take him at his word—has he been campaigning for 42 years but his party, the Liberal Democratic Party, profoundly believes in the solution offered in Part 4. Plaid Cymru believes in a devolved Assembly on the lines of the Scottish Parliament. The Government proclaim that the Labour Party wants exactly the same. I will refer to some of the differences that exist within the Labour Party. They were slightly indicated, gently, by the noble Lord, Lord Rowlands, in his speech earlier this afternoon. But I will come back to that. I accept that the Labour Party is in favour of full devolution.
	It has clearly emerged during our proceedings in both Houses that such a step forward would be welcomed by the Conservative Party, if that is what the people of Wales want. We think that there should be a referendum and we trust the people. If the people of Wales want to move forward in this step, they will have our support. That has been made quite clear by my honourable friend speaking in another place. It has been made quite clear by Nick Bourne, our leader in the Welsh Assembly. There were some passionate speeches in favour by individual Conservatives such as John Gummer in another place. A considerable number of Conservatives will be campaigning with enthusiasm in that cause.
	So we have a situation where all the major political parties advocate full and proper devolution on the grounds that the Scots have it. Yet the noble Lord, Lord Thomas of Gresford, having campaigned for 42 years, says that he dare not go down that road—he must allow time for the people of Wales to see sense. There are difficulties now. Until they have the experience of the step-by-step legislative procedures in Part 3, the people of Wales might not accept his arguments.
	We are then told that the situation will be different in a number of years' time. The people of Wales can then be given a vote. Then they will be told, "There is no point in your not voting for full devolution because by then you will have got it. We will have gone step by step in this fragmented way without having asked your opinion and we will have 95 per cent of the full devolution on the statute book. Therefore there is no point in your not voting for it in a referendum. We will now allow you a referendum". That is the Government's position. It is the most extraordinary, insulting position for the people of Wales. They are to be allowed to decide only when the decision has effectively already been taken for them in this piecemeal way. But that is what is proposed.
	The reason why the Government are in this position is not entirely that the Secretary of State believes he is totally incapable of winning the arguments in a referendum; it is that there are grave divisions among Labour Members of Parliament. One of the reasons why there are divisions among Labour Members of Parliament is that some of them do not like some of the inevitable consequences of full devolution. There will be fewer Welsh Members of Parliament. That is an inevitable consequence. They will have less scope for their activities. They will probably have less opportunity to play a major role in the United Kingdom government. That has always been clear. It has been clear since those days back in the 1970s when some of us debated these issues and when Tam Dalyell spelt out the West Lothian question. The case has recently been well presented in this House by my noble friend Lord Baker of Dorking, who was with us earlier and whose Bill is now in another place. These arguments will not go away. However, it is because the Labour Party is divided that we have this mish-mash, this complicated and unsatisfactory measure which was so exposed by our debates earlier this afternoon for its complexity and for the extraordinary confusion that exists as a consequence.
	My position is quite simple. I do not like Part 3. I would prefer to move straight to Part 4. I would prefer to move straight to allowing the Welsh Assembly, when it wishes to, to hold a referendum so that we can move to full legislative devolution if that is what the people of Wales vote for. "Trust the people of Wales" is the basis of my argument.
	The Government, I suppose, are trying to pretend to the people of Wales that Part 4 gives them that opportunity. However, Part 4 contains some extraordinary and very stiff hurdles. "Hurdles" is perhaps barely the right word. It would be a Beecher's Brook if it were the Grand National, or perhaps the Lake jump at Badminton. They have to get over it. They have to get over a hurdle which demands that they have a two-thirds majority in the Assembly; not two-thirds of those who vote but two-thirds of the number of seats. They have to have 40 people in favour. It is actually more than two-thirds. The Presiding Officer is an elected Member but he will not be allowed to vote. So the demand is that the Welsh Assembly must produce a two-thirds majority. There must also be the consent of both Houses of Parliament. But this Parliament will be allowed to form a view only when the Secretary of State has carried out some kind of consultation of which he is the sole judge. If he judges that the consultation was not adequate, he need not bring the measure forward.
	Again, my position is quite simple. It is based on the arguments that we have heard repeatedly from the Front Bench opposite during our debates—that if you are to have a Welsh Assembly, you should leave it to them. You should trust the judgment of the Assembly.
	If we have a Welsh Assembly that understands what is going on in Wales, I do not understand why it cannot be trusted to decide whether a referendum on this issue should be held in Wales. Why should there have to be a two-thirds majority of the whole Assembly, not just those voting? You can envisage all sorts of circumstances in which one, two or three members might not be present due to sickness or other reasons. A two-thirds majority constitutes an enormous hurdle.
	We in this Parliament accept that a majority of one is enough. That decides who should govern this country or whether a parliament falls or stands. If we really have confidence in the Welsh Assembly and trust it, why should it be made to jump over these hurdles? My amendments seek to lower the hurdles. They would enable the Assembly to go ahead in this regard with a majority of one and would not require the Secretary of State to consult on the matter. If we were really putting the Bill to rights, there would need to be one or two consequential amendments based on the relevant decision. However, my argument is simple; namely, that the people of Wales deserve to be treated better than they are under the Bill as it stands.
	The noble Lord, Lord Richard, has argued elsewhere that it is unlikely that we shall see a referendum before 2011 at least. Others, including the noble Lord, Lord Thomas of Gresford, argue that a vote on a referendum might not occur for a decade or more. If he is so lacking in confidence in his powers of persuasion, that might not occur for another 42 years. That seems to me an extraordinarily feeble approach for those who believe in the devolution case. It shows political cowardice and a lack of trust in the judgment of the people of Wales whom they claim to serve.
	As I say, my argument is simple. I did not take part in the campaign on the previous referendum, but I have acknowledged that I was against the step that was then taken. However, I have always accepted that once the decision was taken to have an Assembly, we could not go back and we must make it effective. We must trust the Assembly and the people of Wales. I speak to these amendments on that basis. I am not sure that I shall press them tonight. I want to hear the Committee's response to them. In that respect they are testing the waters. However, before the Bill leaves this House, I shall seek to give the people of Wales the chance to decide their future. If they want a full legislative Assembly, I am very happy that they should have it. I beg to move.

Lord Livsey of Talgarth: The Liberal Democrats have an amendment in this group. Amendment No. 84 seeks to transfer to the Assembly, not the First Minister, the task of moving and passing a resolution to make an Order in Council for a referendum in Part 4. Amendment No. 86 would remove the ability of the Secretary of State to refuse a referendum if the Assembly wanted it. It would therefore reduce the powers of the Secretary of State in that regard. The elected Assembly should be able to say when a referendum would take place. I hope that the Committee sees the point of that amendment.
	I was extremely interested to hear the contribution of the noble Lord, Lord Crickhowell. He referred to my noble friend Lord Thomas. I am sure that on another occasion my noble friend will address the points that the noble Lord made. Suffice it to say that, for very good reasons of a celebratory nature, he and his wife are attending a meeting with a religious adviser to the Speaker, but he will return to the Committee.
	The noble Lord made some extremely interesting points. I respect what he said about accepting the result of the previous referendum. I know that that is the case and that is an honourable position to take. The point about a two-thirds majority triggering a referendum is a very interesting one. I must be absolutely frank here. It is my party's policy—and has been for a very long time—not to have a referendum on this matter. I refer to the principle of a Welsh Assembly being accepted in the 1997 referendum.
	The Liberal Democrats oppose Clauses 102, 103, 104 and 105, which all refer to the establishment of a referendum. The Committee will note that we are being consistent in opposing referendums. I believe that the concept of a referendum will be manipulated—I believe that has already been tacitly admitted—and that it will occur when it is politically expedient to hold one. The rush of the noble Lord, Lord Crickhowell, to support a referendum may be tactical. I suspect that there is an element of that, although I am expressing that very diplomatically. The Conservative Party has undergone a conversion with regard to a referendum on this issue. A referendum can be used to political advantage. That is one of the reasons that the Liberal Democrats have not gone along that route. We realise the weaknesses of that approach. "Trust the people" is a great rallying cry. However, it depends what the electorate are confronted with in a referendum, the nature of the relevant question, how it is phrased and emphasised. We all know what can happen where the wording of a referendum question is open to manipulation.
	We shall see what happens but we do not think that it is appropriate—at present anyway—to consider a referendum. However, one may occur in the future. It is ironic to hear the swings and roundabouts of the argument. The noble Lord, Lord Crickhowell, rightly referred to the Secretary of State's remark in another place that he did not feel that it was possible for a referendum to be won at the present time, yet polling over the past 12 months has consistently demonstrated—there have been three polls to my knowledge—that people in Wales are in favour of giving many more powers to the Assembly and of having primary legislative powers. It is very much a question for debate at the moment. I am particularly speaking in respect of Amendments Nos. 84 and 86.

Lord Henley: I shall briefly offer my support and that of the Front Bench to my noble friend Lord Crickhowell on his amendments. We are completely mystified by the policy of the Liberal Democrats. My noble friend might be correct that it would be a good thing not to press this to a Division tonight and leave it for another occasion, because by then the Liberal Democrats might have come round to a more sensible way of thinking on these matters.
	For the noble Lord, Lord Livsey, to accuse my noble friend of wanting a mad rush to a referendum completely ignores the facts behind his amendments. As my noble friend said, two enormous hurdles have been erected—or, as he put it, something larger than hurdles—in the way of a referendum. One is the demand that the Assembly should vote by a two-thirds majority of all Members, and the second is that the Secretary of State must then give his approval—so he has a veto on whether it happens—before any amendment could be made.
	All that my noble friend is suggesting is, first, that we remove the Secretary of State's veto, and, secondly, that it is merely a matter for the Assembly to decide by a simple majority whether there should be a referendum. The Assembly itself is best equipped to decide whether such a referendum should go ahead. We support what my noble friend is trying to do, and we will support him if he wishes to press this further at a later stage.

Lord Elystan-Morgan: The noble Lord, Lord Crickhowell, has been fairly generous and general in his condemnation of the standpoints of various parties and individuals on Parts 3 and 4. It seems that the only person who is entitled to dress himself in a white sheet of purity in this matter is the noble Lord himself. I should like to look a little more closely at that idea for a moment or two. I accept that this is an honourable House and that one does not impugn the motives of people who take views opposed to one's own. One should give the same credit to persons holding such views as if they were one's own views. It is not really a question of whether the noble Lord accepts the fact of the Welsh Assembly; I am fully prepared to accept that that is the case. We are dealing with the translation of the Welsh Assembly into a parliament; a part-parliament under Part 3 and, under Part 4, a full parliament—in many respects one could describe it as a Gladstonian-type Home Rule parliament.
	I have never heard the noble Lord, Lord Crickhowell, whose career I have followed closely—at one time we had adjoining constituencies in the House of Commons—say one kind word about Home Rule. Whatever he may have said about devolution, I readily accept that as Secretary of State during a distinguished career he was responsible for many substantial items of devolution that proved to be of very considerable advantage to Wales. However, the issue is his genuineness about Home Rule. If his track record—he has referred to the Grand National in his most eloquent speech—is anything to be relied on, he has placed every conceivable impediment in the way of Home Rule. If I had been asked to anticipate what his amendments would say on this issue, I would have expected them to change "two-thirds" to "97 per cent". So why is he relying on a figure of 51 per cent and seeking to rush the Welsh people into a referendum?
	I have my fears of referendums; I have already explained in the House how I was unfortunate enough to be the leader of the "yes" campaign in 1979, when that ill-fated event turned out to be a very great disappointment for everybody who believed in devolution for Wales. I am not confident, nor would I ever be absolutely confident, that a referendum could be carried in any circumstances, whatever the polls said and whatever the Delphic oracles or the runes indicated. I would be extremely wary of feeling confident. However, I accept that it is right and proper that there should be a referendum. It is a very considerable leap forward in constitutional terms, and it is therefore entirely appropriate that the suggestion should be put to arbitrament of the Welsh people in that way.
	There can be only one of two reasons for the noble Lord's standpoint—replacing "two-thirds" with "51 per cent" majority—in his amendments. One would be an incandescent commitment to Home Rule. If the noble Lord has suffered or enjoyed a Pauline conversion, it is for him to say so. If he says so, I will withdraw every suggestion that there might be any tactical motivation behind his amendments. If he says that he is not relying on the argument that it is for the Welsh people to decide, that he believes in Home Rule, will vote for it in the referendum, will campaign for it and will advise his party, as one who holds considerable influence in its ranks in Wales, to support it, I will withdraw everything.
	On the other hand, one must approach the situation with some suspicion. Either it is a case of total commitment to Home Rule and therefore wanting to ease the path of the Welsh nation towards a Home Rule parliament, or it is a desire to wreck the whole process. Nothing could be easier than to do that by a coalition cobbled together of malcontents about Home Rule, who forced that vote on the Welsh people at a time when it was unlikely to succeed, and where the whole motivation was to kill Home Rule.
	I might very well be accused of being less than generous towards the noble Lord on this issue, but I have looked carefully at his track record and noted his attitude to Home Rule at each stage. I have noted what the leaders of his party here at Westminster had to say about the very prospect of a Welsh Assembly. Mr Hague condemned it when he was Secretary of State for Wales and as Leader of the Opposition. Since the Assembly came into being, there have been other voices in Wales, Mr Bourne, the leader of the Conservatives in Wales, among them. How far he goes on the path towards Home Rule of course is another matter. Sweet words, and no doubt genuine words, have been spoken in favour of an Assembly, but that is a very far cry from what we are dealing with here in the context of Part 4.
	I therefore reserve very considerable doubts about the exact intentions. If there were no further evidence, one would be entitled to look to the past, but of course there is further evidence. One looks at Amendments Nos. 81 and 82, where the noble Lord proposes that if a referendum is lost, there is a moratorium of four years. Whether a referendum takes place or not, and assuming that it either does not take place or is not carried, at the end of 10 years under Amendment No. 81 the whole matter dies. There is certainly a considerable body of evidence that points to the intentions of certain people to have a referendum called at the most unpropitious stage as far as Home Rule is concerned, for that to be defeated, for the whole situation to be placed in porth for four years, and then—they hope—for it to die out after 10 years. If I am wrong, I will totally withdraw that, but I have my fears and would be foolish and naive not to express them in this way.

Lord Roberts of Llandudno: I join the noble Lord, Lord Elystan-Morgan, in a wariness regarding the amendment from the Conservative Party. I remember in 1979 the referendum in Wales, when Mr Hamilton's amendment said that we needed 40 per cent of the Welsh electorate to vote yes. I do not recall at all an amendment from the Conservative Party to make that any different. It did not want any movement, because it did not in its heart of hearts believe in devolution. It is a matter of the heart: you are either a devolutionist or a restrictionist. Are you a unionist or somebody willing to allow devolution to strengthen and develop? The opportunity was here this afternoon. We had a vote on the Liberal Democrat amendment that would have given the Welsh Assembly the same powers as the Scottish Parliament. I went to check with those who had been counting, looking at the list of those who voted in favour of that amendment. There was not a single Conservative there, so we suspect any crocodile tears shed in this direction very much indeed.
	The new support from the Conservatives for a referendum is very different from their track record. When we had the referendum on our place in Europe, the first referendum in 1979 for Welsh devolution and the referendum in 1997, they were not from Conservative Governments. What is really in the mind of the Conservative Party? What is its intention? Is it not in the end, as the noble Lord, Lord Elystan-Morgan, stated, to put a brake on devolution in Wales?
	In the debate earlier this afternoon, the noble Lord, Lord Kingsland, wanted to delay things when the noble Lord, Lord Rowlands, posed his amendment, saying, "Six months, 60 days, don't rush into it". Here is something totally contradictory. With the noble Lord, Lord Elystan-Morgan, I have my suspicions. I do not think that we will be voting tonight but, if this is ever put to the vote, I will still think that 51 per cent is not well intentioned.

The Earl of Mar and Kellie: I am interested to see that a new constitutional principle is arising whereby one of the devolved assemblies can decide whether it wants further legislative powers. I also think that a constitutional glass ceiling is probably in place, because the Scotland Act is clear that the Scottish Parliament could not legislate to go beyond a devolved parliament status. I of course hope that the Minister will tell me that I am wrong and that the Scottish Parliament could start such negotiations for progress beyond a devolved parliament, but I am interested to see that the Government are now allowing a devolved institution to decide that it wants more powers and to generate a referendum, up to the point of devolution but not beyond.

Lord Davies of Oldham: I am grateful to all Members of the Committee who have spoken in the debate. As and when the referendum occurs, we will expect the Conservative Party to be very much to the fore in campaigning for a yes vote, led no doubt by the noble Lord, Lord Crickhowell. However, I must take the position behind the amendments at face value, and I want to express to the Committee why we have in the legislation a different formula for the basis of the referendum.
	Let me make it absolutely clear that referendums are not light-hearted issues. A referendum result is a decisive occasion in the body politic. The 4:1 defeat in 1979 set back the whole devolution project for more than 20 years. It is true that there were other factors; the arrival of the Conservatives—in their pre-pro-devolution days—in government was not helpful. Nevertheless, there were considerable anxieties in Wales that the extent of the defeat in 1979 meant that those who argued for devolution faced a difficult situation.
	We are talking about a situation different from 1979 as well. The defeat at that stage merely stopped the proposal dead in its tracks, but now we have a working National Assembly. Even under the proposals of the noble Lord, Lord Crickhowell, 51 per cent of the National Assembly would have voted in favour of a referendum and so would have committed themselves to it. Then they get beaten in the referendum; the referendum is lost. What kind of confidence would such a defeat place in the National Assembly for its continuing work under the existing arrangements? That is why the approach to the referendum should be on the basis of clearly identified support.

Lord Henley: The noble Lord seems to be saying that, with the two hurdles put in place, only one man or possibly woman—the Secretary of State—is wise enough to know exactly the moment that the referendum should be offered to the Welsh people. Was that the position that the Deputy Prime Minister was in when he offered a referendum to my colleagues in the north-east, which again was rejected by something like 4:1?

Lord Davies of Oldham: No. If the noble Lord, Lord Henley, reads the Bill carefully, he will recognise that what is being said in it is that two-thirds of the Assembly should support the proposal for a referendum before the process is undertaken. The basis is not one man at all, but very considerable support in the Assembly, with the understanding that that support would then generate considerable campaigning activity by all those involved. By definition, two-thirds support in the Assembly clearly involves a great deal more than one party, so the basis for a successful campaign might be mounted. A 51 per cent position would put that in very different circumstances, which is why the proposal for a referendum needs to be based on very considerable support in Wales.

Lord Henley: If the Assembly decides by an overall majority or unanimously to have a referendum, does it not remain possible under subsection (6) of Clause 102 for the Secretary of State to prevent it?

Lord Davies of Oldham: Of course some judgment has to be made by the Secretary of State, otherwise the Conservatives would be not only arguing most enthusiastically for devolution, but saying that the rest of Britain had no role whatever in this process. A vote in an Assembly that was carried by a majority of one could then be translated into the will of the nation, whereas the nation is more than just Wales; it is also the rest of the United Kingdom, which has a view on devolution. Therefore, of course the Secretary of State should have some interest in this matter. That is bound to be the case. The Conservative position goes from the absurd to the almost outrageous—and is untenable. The noble Lord, Lord Crickhowell, should recognise that his amendments, far from advancing the cause of devolution, potentially devalue the role of the National Assembly under the existing arrangements, never mind build on them.
	It is not unreasonable for the Secretary of State to have some discretion in the matter and to be able to take into account views expressed in consultation. The United Kingdom Government of the day should have a say on such a major constitutional decision. Or has the Conservative Party been out of government for so long that it has lost sight of the possibility that it might even be a Conservative Secretary of State to whom it would deny any such role? I am sure that the whole country will take note of that. I and the Government believe that the Secretary of State would have some responsibility to Parliament, to which he would be answerable for a decision taken by the devolved Assembly on this matter.

Lord Elystan-Morgan: While appreciating that the Secretary of State is not acting as a mere dummy in this matter and that he has a role to play, would the Minister accept that that role is circumscribed and limited? In other words, the Secretary of State is entitled to refuse to lay that draft order before the House within 120 days and he must state the grounds for his refusal. Do Her Majesty's Government envisage that such a refusal should be only for some grave and weighty reason and should never be part of the tactics of day-to-day politics? The matter should be very substantial.

Lord Davies of Oldham: I think that that is right, but the Secretary of State has responsibilities. Therefore it is entirely appropriate for the Secretary of State to exercise a limited area of discrete powers, as the noble Lord indicated, before the decision of the Assembly is implemented. That is all that is being proposed in the Bill.
	The noble Lord, Lord Livsey, has tabled an amendment under which a formal resolution of the Assembly proposing a referendum would not be moved by the First Minister or one of the Welsh Ministers, but would simply be a decision for the Assembly. The restriction in the Bill is there for a good reason. A formal resolution of the Assembly proposing a referendum on primary powers would be a serious step. The Government believe that such a step should not be taken unless there is consensus across the political parties—including the party or parties in government in the Assembly—that the time is right for a referendum. A proposal made formally by Welsh Ministers will carry much more weight than one which is not.
	Any referendum would have to be proposed against an expectation of a considerable likelihood of success, in case the Assembly was damaged. Achieving that means that we should have in place proposals that guarantee the broadest level of support in the Assembly and in Parliament for such a development. That is why I can accept neither the Liberal Democrat amendment in its more limited form nor the amendments tabled by the noble Lord, Lord Crickhowell, which others have suggested might be devolution wrecking—I shall content myself by saying that they would do substantial damage to the cause.

Lord Crickhowell: This has been a fascinating short debate. The Minister made two arguments, really. In defending the role of the Secretary of State, he said that we must have the national view as well as the view of the people of Wales. That comes pretty close to the words of a former Liberal Prime Minister that I quoted some hours ago, who said that there must be an English veto. What else did the noble Lord's words mean? Then he declared that one should not have a referendum unless one was certain that one was going to win it. What he was really saying was that the people of Wales would not be allowed a choice until Ministers were absolutely confident that they could not lose. He advocated an alternative solution based on subterfuge and deceit: "Step by step we will get there, and only when we have got there will we allow the people of Wales a choice".
	The position of the Liberal Democrats is remarkable—it is not to have a referendum at all. Well, the fact is that the Bill provides for a referendum, so the real question is: should the people of Wales be allowed to go ahead and be given their choice or should the Welsh Assembly be allowed to decide whether to ask the people of Wales, albeit at a date effectively to be decided by the Secretary of State and the UK Government acting in what has been described as the national interest?
	It was suggested that I, or those who think like me, would fiddle the wording of the referendum, but our Amendment No. 83 proposes that the wording of the referendum question should be decided after consideration by all the political parties in both Houses of Parliament. So that was not a strong suggestion.
	I welcomed the return of the noble Lord, Lord Elystan-Morgan, to this House after a long absence and reminded him of when we used to speak in Cardigan Mart many years ago. The noble Lord said that he was not impugning my motives and went on to impugn them robustly. He questioned the genuineness of my attitude. He said that I was trying to rush the Welsh people. Rush the Welsh people? I am not. I am saying that the Welsh Assembly should have the choice. He believes in a Welsh assembly but does not think that the Welsh Assembly should be able to take the decision. I quite understand why he is nervous in his approach; he is living in a past of very bad dreams, because he confessed his role in that 1979 referendum, when only 13 per cent of the people of Wales voted on his side of the argument.
	Although the noble Lord has a long memory, he was wrong to suggest that if a referendum was lost, the door would be closed. He criticised our amendment, but that amendment would allow a referendum to be brought forward again in four years. As I pointed out earlier in the debate, the noble Lord, Lord Richard, does not believe that we are going to have a referendum anyway in that timescale. No one who has argued the case on the other side has put forward the proposition that the Welsh people will be given a choice in the next four or five years. Indeed, I think that some hope that it will be 10 years or more before the Welsh people are given a choice.
	I was asked what my position would be. My first position is that the people of Wales should be allowed to choose. Whatever doubts I may have had in the past, given a choice between the subterfuge and deceit of Part 3 and going the whole hog of Part 4, I would unhesitatingly campaign for Part 4. I think that Part 3 is wholly disreputable and dishonest. I quoted the criticisms of the mechanism by noble Lords on the Liberal Democrat Benches and by the noble Lord, Lord Richard. The mechanism is deceitful and unacceptable because effectively, step by step, it takes us down the road to devolution without allowing the people of Wales any say in the matter at all and then, when they have got there and the door is closed, the noble Lord, Lord Elystan-Morgan, turns round and says, "Now you can vote on it. And by the way, there is no point in voting against it because we are there already". I call that a dishonest approach and I will not have anything to do with it.

Lord Elystan-Morgan: I thank the noble Lord for giving way. I said that I would withdraw completely any imputation as to his genuineness if he answered the question clearly and honestly, and he has done so. He said that, in the situation in which we now are, he would be a supporter of Part 4.
	Perhaps I may put the alternative case now that I have absolved the noble Lord of all possible blame. The alternative case is as follows. Not everyone may be as altruistic as the noble Lord. There may be malcontents who harbour in their hearts nothing but a fear of home rule and a feeling that they will retreat only inch by inch as they are driven back. There could be malcontents who could cobble together an unholy alliance to form 51 per cent and wreck the whole of Part 4 of the Bill in that way. So, rather than having the noble Lord in the dock, one has to proceed on the basis that there are people who would gladly welcome that opportunity.

Lord Crickhowell: I do not intend to carry the debate any further tonight. We will probably have an opportunity to do so at a later stage in our proceedings. I can say only that I find it extraordinary that those who plead for devolution, who demand that the Assembly should have more powers and more authority and who suggest that, when it comes to all the important decisions, the Assembly should decide, have so little faith in the Assembly or in the judgment of the Welsh people. They talk about democracy but they are denying democracy to the people of Wales. I think that it is a shameful position and I will come back to this matter at a later date, but now I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 79 not moved.]

Lord Roberts of Conwy: moved Amendment No. 80:
	Page 57, line 16, at end insert—
	"( ) The draft of any statutory instrument containing an Order in Council under subsection (1) laid before each House of Parliament shall be amendable by either House during its consideration and approval."

Lord Roberts of Conwy: The order referred to in the amendments in this group would cause a referendum to be held throughout Wales on whether the Assembly Act provisions should come into force. It is likely that the order would contain the question or questions to be answered in the referendum, "unprecedented" as that might be, according to the Delegated Powers and Regulatory Reform Committee. I am sure we are all familiar with the fact that it would be very unusual for the question in a referendum to be in secondary rather than primary legislation.
	If a referendum took place as the result of an order, presumably it would be after the Electoral Commission had examined the fairness of the question, as it is required to do in legislation. It would seem to me very odd in the circumstances if the two Houses of Parliament were unable to amend what the commission could change. But the strongest justification for ensuring that the order is amendable, which is what the amendment proposes, is that the timing of the order is so uncertain. It may indeed be a decade or more from now before such an order is required. It would certainly seem right to ensure that Parliament had maximum flexibility to act in those totally unforeseeable circumstances. Of course, a referendum Bill may be necessary to allow full parliamentary discussion but, on the other hand, instruments known as super-affirmative orders allow for amendments and modification.
	I have to tell the noble Lord, Lord Elystan-Morgan, that Amendments Nos. 81 and 82, into which he read so much, are probing amendments. The matters referred to in these amendments have been discussed in the other place and I think that we should discuss them now. Amendment No. 81 is based on the view that it is unwise to legislate too far ahead and it sets a 10-year limit from the passing of the Bill on the application of subsection (1). That seems to me to be reasonable. Amendment No. 82 sets a four-year interval between one referendum and the next in order to avoid an immediate build-up of pressure following a referendum.
	I know that the Government have views on these matters and I am very anxious to hear them. I beg to move.

Lord Davies of Oldham: I am grateful to the noble Lord for the precise way in which he has explained his amendments, but I have to say that a real practical difficulty is attached to Amendment No. 80. The Bill provides that the draft referendum Order in Council must be approved by two-thirds of all Assembly Members. A draft Order in Council would not be laid before Parliament unless it had been approved by the Assembly. If Parliament were to amend the draft order, that would nullify the effect of the Assembly's approval. It would undermine the basis on which any future referendum should be called—that is, a firm basis of consensus about the timing of the referendum—and the exact terms in which it should be put to the electorate. So I do not see what the capacity to amend would do other than severely damage the Assembly, having effectively nullified its role in the first place. The Assembly would have approved by a two-thirds majority any draft order that was laid before Parliament and presumably it would wish to approve any amended order or indeed to have similar powers. The amendment seems to propose an absurd development.
	In reality, I believe it will be necessary to reach consensus about the referendum ahead of the formal procedure for approval of the draft Order in Council by the Assembly and both Houses of Parliament. It will be for the Welsh Assembly and UK governments of the day to ensure that sufficient consultation takes place to guarantee that that is the case.
	Of course, either House can still reject the draft Order in Council, but amending suggests that the necessary preparation and consultation has not been undertaken. I do not see how the Assembly could conceive of fulfilling its role without having paid its full part in that.
	Amendment No. 81 would prevent a referendum under the terms of the Bill from being held more than 10 years after the Bill receives Royal Assent. Why should there be an arbitrary time limit on the possibility of enacting the provisions in Part 4? The powers in Part 4 do not, and should not, have a use-by date. Under the Bill, the timing of a referendum would have to be considered and agreed by both Houses of Parliament and by a two-thirds majority in the Assembly. Such consideration, by democratically elected MPs and Assembly Members, will ensure that the referendum is held at an appropriate time—not within an arbitrary 10-year time limit, which I contend is meaningless.
	I know the Secretary of State has said that he cannot see a referendum happening in the near future because it makes sense to see how the provisions enabling the Assembly to make measures bed down first. However, we cannot predict at this stage exactly when a referendum should be held and it would not be appropriate for us to say that a referendum should be held within 10 years or not at all.
	Amendment No. 82 seeks to impose a gap of four years between any referendum and an Order in Council calling for a further referendum under the Bill. The fact that a referendum can be held only with the agreement of two-thirds of the Assembly, with the agreement of the Secretary of State and with the agreement of both Houses of Parliament, all of whom will be aware of the financial and political cost of frequently repeated referendums, is surely safeguard enough without us needing the terms of this amendment.
	We fully agree that frequent referendums under the Bill would be counter-productive. But the process for approving a call for a referendum which is built into the Bill will guarantee that frequent referendums are not called. Therefore, I hope that the noble Lord will realise that we have thought through these issues carefully and feel able to withdraw his amendment.

Lord Roberts of Conwy: I am grateful to the Minister for his comments on the amendments in this group. They are primarily probing amendments. Perhaps he could clarify the point that I have made. Would an order approving a referendum contain the question? Would there be separate legislation to govern the content of the question to be put in a referendum?

Lord Davies of Oldham: Of course, the order would be the result of very considerable consultation on the nature of the referendum and when it would take place. It would be unprecedented for a referendum question to be set in an Order in Council. Putting a referendum question on a matter concerning devolution on the face of primary legislation is not an unvarying rule, as the Northern Ireland Negotiations (Referendum) Order 1998, made under Section 4 of the Northern Ireland Act shows. The point is that in each case the legislation has been framed in a way that best gives effect to the policy requirements. We recognise that the Order in Council is a process—we debated this point at some length earlier—which presumes very extensive consultation and very extensive scrutiny before any such order is tabled before the House. Therefore, the noble Lord will recognise that representations in regard to the order will be conducted on the widest possible basis before any order is tabled.

Lord Roberts of Conwy: I am grateful to the Minister for that further clarification. I note that he views with some disfavour the possibility that the order—in other words, secondary legislation—might contain the question to be put in a referendum. I remind him, yet again, of what was said by the Delegated Powers and Regulatory Reform Committee in paragraph 37:
	"We draw to the attention of the House that it is unprecedented with a devolution referendum for the wording of the question, and of any statement preceding it, to be left to subordinate legislation".
	I am sure that the Government have taken that point on board. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 81 and 82 not moved.]
	Clause 102 agreed to.
	Schedule 6 [Referendums on commencement of Assembly Act provisions]:

Lord Roberts of Conwy: moved Amendment No. 83:
	Page 115, line 8, at end insert—
	"( ) Both the question to be included on the ballot paper and any statement to precede the question must first have been approved by each House of Parliament in a procedure where the question and statement shall have been capable of amendment by each House."

Lord Roberts of Conwy: It is clear that the purpose of the amendment is to ensure that the referendum question on the ballot paper and any accompanying statement have been approved by both Houses in a procedure where they have been open to amendment.
	The Delegated Powers and Regulatory Reform Committee has drawn our attention to the fact that it is for the Order in Council to specify the referendum question and any statement to precede the question on the ballot paper. That is contained in the memorandum submitted by the Wales Office. It is unusual for such devolutionary matters to be left to subordinate legislation. The referenda of 1979 and 1997 in Wales and Scotland were covered by primary legislation, as were the London referendum and regional assemblies referendum. The Government defended their decision in their memorandum on the Bill to the Delegated Powers and Regulatory Reform Committee. The memorandum states:
	"It is highly desirable that the referendum question, and any preceding statement, are left to the Order in Council rather than specified on the face of the Bill . . . Specifying them on the face of the Bill would be inflexible".
	It adds that the need for flexibility is largely based on the obligation to consult the Electoral Commission under Section 104(4) of the Political Parties, Elections and Referendums Act of 2000.
	Of course, I grant that the Government have a case of sorts, based on convenience and expediency, but I note that the Delegated Powers and Regulatory Reform Committee is far from convinced. It feels obliged to draw the attention of the House, as I indicated in speaking to an earlier amendment, to the unprecedented nature of leaving these devolution referendum issues to subordinate legislation. I quote:
	"In deciding whether that is acceptable, the House will wish to consider whether it is important that the draft legislation containing the proposed question is amendable by the House. If the House concludes that Parliament should be able to amend the Government's proposed question, then subordinate legislation is inappropriate. The House would then need to decide whether it is more appropriate for this bill to contain the question, or for a separate bill to make that provision shortly before the time at which the Government intend to hold the referendum".
	As the official Opposition, we take the view that these matters should be amendable and that this is the predominant view of Parliament. We are open-minded as to how that ability to amend question and statement is to be secured, as indicated by our amendment. There is no shortage of time, since Ministers do not anticipate a demand for a referendum under Part 4 for at least a decade, so it is up to the Government to explore the possibilities and come up with a satisfactory answer to the problem. The substance of our amendment to Schedule 6 is still valid, however. I beg to move.

Lord Davies of Oldham: The Government have carefully considered the points raised in this amendment. We are still firmly of the view, however, that the approach presented in the Bill is the right one for Wales in the context of Welsh devolution.
	The Bill sets out the issue on which the voters would be asked to give their view in a referendum; namely, whether the primary powers part of the Bill should come into force. In this respect, there is no uncertainty over what Parliament is being asked to agree in this Bill; it leaves no doubt as to what the referendum question must be about. Secondly, the Bill ensures that the extent of the legislative competence which the Assembly would acquire under Part 4 will be clear at whatever point a referendum is called.
	So the fundamental principles concerning what the referendum is to be about, and what the consequences of a "yes" vote will be, are being considered here and now as Parliament debates this legislation. The distinction between this Bill and the referendums listed by the Delegated Powers and Regulatory Reform Committee, to which the noble Lord, Lord Roberts of Conwy, drew attention, is that, unlike those other examples, the referendum provided for by this Bill may not occur for some time.
	The other examples concern a referendum question which is imminently to be put before the electorate. The Bill recognises that we do not know when the referendum will be called, but we know the issues which will frame the question. By providing for an Order in Council to contain the referendum question and preceding statement, the Bill ensures that the precise wording can take account of the circumstances at the time. I emphasise that we do not know when that will be. For example, the preceding statement might be worded differently according to the extent of the legislative competence that the Assembly had already acquired over any intervening years between this Bill becoming law and the referendum being established. The referendum question and any preceding statement must form a single package and the two should be fixed at the same time; that is, whenever a referendum is to be held. This is consistent with existing practice.
	I emphasise again that the consultation necessary for the two-thirds majority of the Assembly to support a referendum, and the consultation between the Assembly, the Secretary of State and Parliament preceding the Orders in Council, guarantee that the issue of the precise question is fully debated and considered before the Order in Council is proposed. It would certainly be a dramatic step—in legislative terms, almost a revolutionary step—for the noble Lord's amendment that an Order in Council should be amendable to be accepted. We do not propose that. We propose that the Order in Council should follow the patterns of Orders in Council which are before this House from time to time and are not amendable, and the Orders in Council on other aspects of this Bill, governing the development of powers for the Assembly of Wales.
	The Government have thought through the issues. I recognise the noble Lord's anxiety over the necessity for effective consultation, and the importance of the question. We know the broad terms of the question. They are enshrined in the nature of the Bill. The provisions we have for consultation before the Order in Council, however, will guarantee that effective debate will be had both in the National Assembly for Wales and in pre-legislative scrutiny in both Houses.

Lord Livsey of Talgarth: Will the Electoral Commission be consulted on the nature of the question by the Assembly and the Government?

Lord Davies of Oldham: That is an obligation, which the Government will fulfil.

Lord Roberts of Conwy: I am grateful to the Minister for his reply, which is unprecedented in that we have learnt that the referendum question and the accompanying statement will be put into an unamendable order. True, the order will have been approved by the Assembly; true, it will have been approved by both Houses of Parliament. Let us not exaggerate the scope for debate in that approval process, however. It is a short debate to approve the order, both in this House and the other place. It will certainly be, as the Delegated Powers and Regulatory Reform Committee pointed out, unprecedented for the question and statement to be in secondary legislation.
	The Government are breaking new constitutional, or unconstitutional, ground by the process that they anticipate in this case. Mercifully, it will not occur until a substantial time—possibly a decade—has elapsed. I am sure that, a decade hence, Parliament may well take a different view from that put to us by the Government today. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Schedule 6 agreed to.

Lord Evans of Temple Guiting: I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again not before 8.38 pm.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.

Nuclear Proliferation

Baroness Williams of Crosby: rose to ask Her Majesty's Government what steps they have taken to counter the dangers of nuclear proliferation.
	My Lords, I am grateful to the Government Whips for having found time for this debate on such an important matter, and to colleagues in all parts of the House who have decided to stay on to take part in this discussion.
	When I first tabled this Question several months ago, Iran was still a distant thundercloud on the horizon, and the recommendations of the Weapons of Mass Destruction Commission, chaired by Hans Blix, were, at most, a gleam in his eye. We now face the fact that much of the structure of law and treaty, which to some extent restricted and confined the development of nuclear weapons, is in a state of advanced erosion. We have to look at a structure in which, for example, the nuclear non-proliferation treaty is close to breaking down, with a number of countries refusing to sign it and others refusing to obey it. We also have to recognise that the United States and many other major powers have failed to ratify the famous test ban treaty, even though, up to now, it has been obeyed in practice although it has no legal standing.
	Since the Cold War ended, far from there being a new era of disarmament and a new willingness in the world to begin to create and structure a new system of law, we have seen governments become increasingly sluggish, with lagging interest in disarmament and less enthusiasm about trying to deal with some of the new challenges that confront us. What we need now is a new structure and the reinforcement of some of the best parts of the old structure. That will require a great deal of careful thinking by governments. Most of the law regarding nuclear weapons has been based for the past 40 years on the nuclear non-proliferation treaty. It is amazing that it has survived so long and has been largely obeyed until recently. Much of its structure has suffered because of the extent to which the major powers have been seen by the rest of the world as failing to keep their side of the bargain. The major nuclear powers at the time of the passage of the nuclear non-proliferation treaty confidently insisted that they would accept a major degree of disarmament of the nuclear arsenals that they held. In the SALT agreements and in the major efforts made by President Bush the First—if I may call him that—there was a real attempt to try to reduce nuclear arsenals throughout the world. Some years ago, that effort seemed to run into the sand.
	Even today, with the Cold War long ended and with no obvious enemy for the West, some 12,000 nuclear weapons on hair-trigger alert are deployed throughout the world. Of them, 90 per cent are controlled by the United States or Russia. Another 13,000 nuclear weapons are not so deployed, and they are held by a great many countries but, again, the great majority of them are held by the United States and Russia. I have to underline the phrase "hair-trigger alert". Nuclear weapons can move from deployment to being used in a matter of seconds, and that is the tiny thread on which the safety of the world hangs. What is so extraordinary is that every one of those 12,000 nuclear weapons represents a major loss of resources that could have been used to deal with starvation, hunger and disease in the world. What makes it even more extraordinary is that nowadays nobody has any idea who the enemy is meant to be, except terrorism, and everybody agrees that the enemies who cannot be met by nuclear weapons are individual terrorists. So the situation is not only tragic; it is also, to a great extent, absurd.
	The fact that the major nuclear powers failed to keep their side of the bargain has been a substantial factor in influencing the attitude of non-nuclear countries. A few months ago, I was in India. I went to the major nuclear research centre and found a group of high quality, high level nuclear scientists who argued passionately that India had no obligation to join the nuclear non-proliferation treaty or not to go ahead with the development of nuclear weapons since the western world, in the shape of the major nuclear powers, had not taken its part of the treaty seriously and therefore there was no moral obligation on other countries to take it seriously either.
	In his introduction to the report of the Weapons of Mass Destruction Commission, which I strongly recommend to the House, Hans Blix says that,
	"the nuclear-weapon states no longer seem to take their commitment to nuclear disarmament seriously".
	Global efforts are also needed to secure and clean up fissile materials that are scattered around the world, many of them in perilous and dangerous places. In his important recent speech on foreign policy at Georgetown University, the Prime Minister, Mr Blair, said, when referring to world globalisation:
	"What this means is that we have to act, not react; we have to do so on the basis of prediction, not certainty".
	Almost every major expert in the world on terrorism predicts that nuclear weapons will fall into the hands of terrorists or other organised criminals at some time in the next 10 years unless far more radical steps are taken than have been taken so far to control the fissile materials lying around the world.
	Let me refer briefly to some of the current crises. One of them, which is rather overlooked in this country, is the Indian-American special agreement. Under it, the United States agreed to provide nuclear materials to India for her civil power needs, but did not look carefully at the shortage of uranium in India. That meant that the more the United States was willing to provide civilian uranium, the easier it was for India to divert her own materials to weapons development. In the United States, a lobby is now suggesting that Congress should, at the very least, insist that associated with the Indo-US agreement—which in many ways is a very troubling extension of the areas in which the NPT operates—there should be a commitment by India to a fissile material cut-off, which means that any fissile material that she does not use will not be exported or used for other purposes. India has said that, in principle, she is willing to do so. Pakistan has said the same.
	The second current crisis that I want to refer to briefly is North Korea. The agreement reached in 1994 on the exchange of civil nuclear materials for a decision by North Korea not to continue with nuclear weapons production was breached when the Bush Administration decided not to continue to supply light water for North Korean reactors. The latest information we have on North Korea is that an agreement was reached last September, but it depended upon implementation by both sides. Each side has said that the other side must implement before it will, and so far, there has been no agreement on concurrent implementation, which might break the logjam. Can the Minister update us on that?
	On Iran, one has to say, "Thank God for Condoleezza Rice" and possibly, "Thank God for Jack Straw" because at least America is now willing to talk directly to Iran. Without that, it is quite clear that negotiations would have gone no further. Having said that, Iran is currently deeply concerned about security guarantees and feels itself to be surrounded by potential enemies. Unless we can broaden the basis on which Iran is brought back within the international community and within the IAEA, there is little hope that the problem will be resolved any time soon. In that context, the United Kingdom and its allies should look very closely at some of the rather ambitious proposals put forward by the Blix commission, which were echoed by Prince Hassan of Jordan, for a much wider security guarantee in the Middle East that would attempt to establish a non-nuclear region. Such a guarantee would embrace Israel as well as Iran and the Arab world and would also embrace a commitment by the West and other countries, such as, for example, the Arab sheikhdoms, to provide development aid and, particularly, to try to draw up treaties involving water and energy.
	Finally, there is the issue of loose fissile materials all round the world. Most people are unaware that the total budget spent by the IAEA on securing nuclear materials, as distinct from inspecting them, is $15 million. Except for $1.3 million, all the money comes from voluntary contributions. The statutory contribution required by the treaty is only $1.3 million, which finances precisely four full-time experts. The rest are all on short-term contracts. It is crackers, to put it no stronger, that so little is being spent by all of us on securing nuclear materials in countries such as Iran, North Korea, Israel and elsewhere.
	Therefore, in conclusion, I ask the Minister whether Her Majesty's Government—the Prime Minister has recently shown a lot of interest in such matters as fuel banks—should not take to the European Union's General Affairs Council the issue of whether the EU could not contribute to the IAEA the very small sums of money required to establish a proper nuclear security system under the IAEA's ambit so that we can make sure that the loose fissile materials around the world are controlled and are under serious international inspection.
	I am grateful to everybody who has attended this debate, I am sorry that we have only an hour to discuss such a hugely complex topic.

Lord Hannay of Chiswick: My Lords, the Question on the Order Paper in the name of the noble Baroness, Lady Williams of Crosby, could not be more timely or, indeed, more essential to debate. The international disciplines the world put in place more than three decades ago, as the noble Baroness said, are under acute stress and show increasing signs of fragility. Last year two major global conferences, the NPT review conference in May and the UN summit in September, concluded without a single word being agreed, let alone any measures to strengthen the international regime.
	Two countries—North Korea and Iran—have, in one case, broken out of the regime and in the other failed to satisfy the IAEA that their long-standing clandestine uranium enrichment programme was not designed as a step towards doing so. Three countries—India, Israel and Pakistan—have never belonged to the treaty and show no signs of moving towards it. The five recognised nuclear powers have little to show, and nothing at all recently, on their nuclear disarmament. This is a sorry story on a matter which, as long ago as 1992, was clearly identified by the UN Security Council as a threat to international peace and security.
	First, I say a few words about the two most urgent cases, North Korea and Iran. We should have no illusions. If the international community cannot find an effective response to these two cases, there is no readily available fall-back position, no plan B and no second row of trenches. If countries that want to—even countries with a proven track record of assisting terrorism and challenging the UN charter, and which have signed and ratified the NPT—can acquire nuclear weapons with impunity, then we, the international community, have failed. But finding that effective response cannot just be a matter of coercion, of wielding enough sticks to bring about compliance; we must also be ready to discuss with these countries their security concerns that motivate them and, in so far as they are legitimate, we have to address them. That "we" means "all" those principally concerned, including the United States, which is why I too welcome warmly last week's statement by the US Secretary of State of willingness to join such a dialogue with Iran as the US is already doing with North Korea. We have to put forward in any such dialogue a convincing alternative to the path on which those countries have set out, one which offers real advantages and which guarantees legitimate access to civil nuclear power.
	But simply addressing those two problem cases is not enough; nor will it be successful if all we do is to find ad hoc solutions to them and if we fail to strengthen the multilateral non-proliferation system as a whole. In March of this year Mohamed El Baradei, the director general of the IAEA, in a powerful speech in Karlsruhe, set out a comprehensive analysis of what needs to be done. Just last week, as the noble Baroness mentioned, Hans Blix published the report of his distinguished commission on the same policy areas. I would welcome the Minister's response to those two sets of ideas. What are we doing to make the additional protocol for IAEA safeguards the gold standard? What, above all, are we doing to provide internationally guaranteed assurances of the supply of enrichment and reprocessing services to any country in good standing with the IAEA so that it can pursue a civil nuclear programme without any need or temptation to acquire the whole fuel cycle?
	If anything like the current level of oil prices continues over a significant period, a large number of civil nuclear plants will be constructed worldwide in the years to come. Each of those will require enriched uranium and the reprocessing of spent fuel. If we do not do more now to address this political weakness in the regime, to provide a solid basis for a voluntary moratorium on new enrichment and reprocessing installations, we will surely rue the day—naturally, when it is too late. I warmly welcome the support the Prime Minister gave in his Georgetown speech on 26 May to such an approach. What are we going to do to make a reality of it? What is the critical path towards decisions on it?
	Later this year the Government have promised that there will be a national debate on the future of Britain's own nuclear deterrent. I certainly do not want to anticipate that debate today, but I would be grateful for an assurance from the Minister that, in framing their position on this issue, the Government will take full account of their commitments under the non-proliferation treaty—and reiterated at subsequent reviews of that treaty—to move towards nuclear disarmament. I know our past record in this matter is better than some others, but it really is important to avoid conducting this national debate with a blithe disregard to its possible impact on other countries which do not possess nuclear weapons but which may be contemplating the case for doing so. Too many of the statements by existing nuclear powers in recent times have ignored that dimension; and too few of their actions have reflected any awareness of the commitments they assumed when the NPT was negotiated.
	Today's short debate provides an opportunity to air concerns about a matter of fundamental importance to international peace and security. Can we expect that any action will be taken on these issues when the G8 heads of state and government meet in St Petersburg in July? Of course that grouping cannot take binding legal decisions, but it can give a powerful sense of direction and momentum to a debate which, so far, seems to be drifting rather aimlessly towards a dangerous fall. Energy security is one of the main themes of that summit but we will not achieve any kind of security, of energy supply or of anything else, if we do not respond effectively to the challenge of nuclear proliferation.

Lord Dykes: My Lords, the tone of pessimistic urgency in this stark subject has been aired very competently already by the two previous speakers. I am grateful to my noble friend Lady Williams for launching this debate and I agree strongly with what the noble Lord, Lord Hannay, has just said. Surely, this is the moment of reality and truth for, particularly, the advanced West to consider these matters, stark as they are—and I think that there is general agreement about that.
	Despite the fact that we in the United Kingdom can claim to have made some impressive reductions here and there, none the less the task and the obligation for us is very considerable indeed. Yet, there is a continuum of complacency about these matters, an insouciance which is positively alarming. We have to think about the longer term too. The awkward questions facing us from people such as Bruce Kent—a very controversial figure—get the response, which more and more people tend to believe, that maybe there should not be a replacement for Trident after all. Even Sir Stephen Wall is quoted in his recent letter. And there are the other aspects of the immediate crisis looming up.
	I wish to save time by not repeating the points, with which I agree, of the previous speakers and by focusing mainly on EU3 and Iran. I have a few preliminary words. The problems facing the NPT are so serious that a complete rethink is necessary, and the sooner a new document is presented to the international forum the better. I think that that is the only solution now, bearing in mind the erosion that has taken place, primarily from the insouciance and, indeed sadly, the incompetence of the United States in allowing things to develop as they have done. Nothing was sadder than seeing in the autumn, when the millennium targets were enunciated, and the subsequent review meeting just what a shambles that crucial meeting was on future nuclear disarmament.
	It was so sad to see that the third world had very little confidence in what the first world, the advanced western nuclear powers, and, indeed, China, had to offer. What an example that remarkable country South Africa has shown in being the only country, apart from the ex-Soviet countries, to have renounced nuclear weapons. We need not just consider marginal gestures by the western powers, led by the United States, but substantial reform moves in the future. It is preposterous that Israel is not included in these matters. I believe that it has to be included in whatever NPT mark 2 might succeed the existing arrangements. Its arsenal is very considerable indeed, and it is protected by the United States as well as by the whole international community. It is the unbeatable military power in the Middle East, and there is no need for it to have a large and provocative nuclear arsenal in the future.
	India and Pakistan have already been mentioned, and I entirely agree with the points that have been made. North Korea is a special case of intransigence, but also of co-operation. Now we really do return to the idea, as President Clinton enunciated, of working with North Korea to get sensible solutions there. China has its own particular relationship with Taiwan, and that might have unfortunate nuclear implications in the future. Heaven forfend that it might, but anything can happen in this dangerous world.
	Against that background, what the European Union has achieved so far in its initial contacts and negotiations over a considerable period with Iran, which is a special case and a special problem at the moment, has stood it in good stead and showed that it can make that contribution. Although it was a special one-off, ad hoc, separate mechanism of the EU3 and not part of the overall collective Union effort, it has done Europe a whole host of good in the way in which it has been handled. I believe that more will now come. We have had Xavier Solana's crucial visit to Iran yesterday and today, and we await the results of that visit and the offerings that he is bringing now to continue the process on behalf of the UN Security Council and the European Union, but representing the European Union in this context. Iran knows what its obligations are. They must be faced up to, which means that people in Tehran must accept the realities of the obligations that Iran has had for a long time under the NPT.
	I quickly repeat that the preamble to the NPT declares that the state parties affirm,
	"the principle that the benefits of peaceful applications of nuclear technology, including any technological by-products which may be derived by nuclear-weapon States from the development of nuclear explosive devices, should be available for peaceful purposes to all Parties to the Treaty, whether nuclear-weapon or non-nuclear-weapon States".
	The whole world is now watching to see how Iran is handled by the West, by the UN Security Council and by the EU3. The questions for Iran are crucial, need repeating and need to be answered properly. Does Iran really want a nuclear bomb? The answer may, sadly, be yes. I hope not, but the resumption of the anti-NPT activities commenced a long time ago, in 1985, during the dreadful war with Iraq. Will UN sanctions be imposed? I hope not. The EU3 has already made very generous offers, which will be repeated and augmented, I believe, by Solana's visit yesterday and today.
	Iran's economic structure makes it very vulnerable to economic and financial sanctions, as it knows. If Tehran persists in its nuclear activity, will the US intervene and strike? Why would this be necessary? Jack Straw quite rightly said that that would be nuts; indeed, tribute has been paid to him tonight. The US is now already effectively ruling out such an intervention, thanks to the efforts of Condoleezza Rice.
	The United States' relationship with Iran has been very tragic and based on a built-in dilemma for the United States that Washington's extensive diplomatic and military support for the Shah's repressive regime was a cause of deep resentment for many Iranians. More recently, liberal American society and its dubious culture, including pornography, drugs, gambling and all the other activities associated with United States economic activity, was anathema to the powerful religious establishments under Ayatollah Khomeini, which considered the USA to be the Great Satan. A lot of bad blood has been shown on both sides, and now is the time for the United States, the whole western world and the UN to show common sense towards Iran. Now is the time for reconciliation and a future agreement that could be lasting. That is perhaps the most immediate reason for this crucial and urgent debate today, but many others face us, as the noble Baroness, Lady Williams, pointed out.

Lord St John of Bletso: My Lords, I, too, thank the noble Baroness, Lady Williams of Crosby, for introducing this debate today. Once again, the international community has cause to be profoundly concerned by the proliferation of nuclear weapons. It is also important, however, that the word "nuclear" should not be cast in a completely negative light, because although nuclear weapons remain a threat, nuclear energy may prove to be our salvation.
	This debate on the proliferation of nuclear weapons is constantly evolving. Three years ago, we were worried by developments in India, Libya and Iraq. Today, we find that our attention is preoccupied by developments in Iran and North Korea. However, although the focal points of our concern may be changing, I believe that the most sensible course of action remains the same. It is simply this: Her Majesty's Government should support the worldwide adoption of a clear, unambiguous and straightforward policy, and stick to it. Furthermore, Her Majesty's Government should use their influence in Washington—I am pleased that the nobel Baroness has already mentioned Condoleezza Rice—and we need to work hard to ensure that the United States does the same.
	It is my belief that many of the problems that we face today have arisen as a direct result of uncertainties and misunderstandings caused by a general failure to apply our stated policy equally across the board. We have sent mixed signals, mistrust has spread, and we are now confronted with an uncertain and potentially dangerous future. The essence of the NPT was unequivocal. The treaty stands on three pillars: non-proliferation, disarmament and the right to use nuclear technology peacefully. I repeat all this to underline the view that, 40 years on, the treaty continues to represent a sound basis for international agreement to control the development of these deadly weapons. Sadly, as the noble Baroness, Lady Williams, has already said, the major contributors to the NPT have failed to keep their side of the bargain.
	I was pleased that the noble Lord, Lord Dykes, recalled that South Africa was the first and only country with nuclear capability to willingly dismantle its nuclear programme and accede to the nuclear non-proliferation treaty. As every speaker has said, particular concern is focused today on Iran and North Korea. There is no doubt that both countries are in breach of the NPT. The West's relationship with Iran is nothing if not complex. Relations have certainly deteriorated since the recent election of President Ahmadinejad, who seems to personify a general mistrust of western powers. His statements on Israel are clearly offensive and inflammatory, and his Government's refusal to answer questions of the International Atomic Energy Agency suggests that Iran is determined to pursue a uranium enrichment programme. Now the West is faced with a choice: either we meet force with force in Iran, as we did in Iraq, or we seek to alleviate the mistrust and negotiate a calmer, lasting agreement. The second option is clearly preferable.
	A similar situation has developed, as has already been mentioned, in North Korea. It has been clear for four years that North Korea has pursued a programme to enrich uranium for use in nuclear weapons. North Korea is generally accepted to have produced enough plutonium for one or two nuclear weapons, although some estimates range between five or six. Those are obviously areas of grave concern, but it would be quite wrong for us to fret over developments in Iran and North Korea, and turn a blind eye to Israel and India.
	It bears repeating: if the NPT is to mean anything, it must surely be implemented clearly, unambiguously and equally across the board. The US has always opposed the proliferation of nuclear weapons, but United States policy and, by extension, United Kingdom policy, seems to have been determined by whether the countries concerned are broadly supportive of or antagonistic to US interests. US and, for that matter, UK officials have considered that since there are no conceivable circumstances where Israel or India would pose a threat to us, our opposition to their nuclear weapons development has rarely been sustained. Today, US/UK policy has evolved into tacit acceptance. Obviously, turning a blind eye to countries which we happen to like does not represent a clear, unambiguous implementation of the NPT, and our selective approach undermines the treaty.
	It is not enough for us to sit back and casually point to the fact that neither India nor Israel ever signed the NPT, so they cannot be held to be in breach of the treaty. We must deal with the reality. What is wrong in Tehran and Pyongyang must be wrong in Tel Aviv and Delhi. If we develop an international treaty, we cannot simply apply it to countries of which we do not approve. As one commentator put it, the US and UK look as though they are preaching temperance from a bar stool.
	So, what now? As my noble friend Lord Hannay mentioned, the seventh NPT review conference was held at the United Nations in May 2005, but it may be time for a renewal and affirmation of the treaty and a new global commitment, particularly from the US and the UK, to implement its terms equally. Such a declaration would help to address concerns in Iran and North Korea, and to defuse the current situation. I believe that this is the best way forward.

Lord Alderdice: My Lords, like other noble Lords, I, too, thank my noble friend Lady Williams of Crosby for obtaining this important debate, but I hope that it is a taster for a more full-length debate in your Lordships' House. This is a matter of enormous complexity and importance. It would not be right if all our consideration was confined simply to this dinner hour. It is really only possible to deal with a very limited number of issues. I shall focus on a strategic question, which I hope that the Minister will be able to answer.
	From the beginning 60 years or so ago, there were two approaches to nuclear proliferation. One was associated in the minds of the public, I suppose, particularly with the names of Einstein and Szilard, the two scientists who spoke so much not about just the scientific aspects of the problem but also the political problems. Their view was that the whole community of nations had to come together to address nuclear proliferation. It was perhaps best put politically by President Eisenhower in his 1953 "Atoms for Peace" speech at the United Nations. He said:
	"But the dread secret, and the fearful engines of atomic might, are not ours alone . . . the knowledge now possessed . . . will eventually be shared by others—possibly all others".
	Therefore, the multilateral approach that developed from that, of which the NPT is the most significant element, was an understanding that you cannot stop the knowledge indefinitely: you have to concentrate on co-operation and persuasion, and make available to all countries that wish it the civilian developments of nuclear energy, and encourage that. The positive thing is that while physicists such as the eminent Dick Wilson at Harvard would say now that in 1946 they thought that by now there would be 100 nations with the bomb, of course there is less than one-tenth of that. That shows a success on the part of the NPT. Of course, the lack of success was more in the hands of the "haves" than the "have nots".
	It is very worrying that the other strand of opinion about nuclear proliferation and how to deal with it, associated perhaps particularly with the name of General Leslie Groves, who headed the Manhattan project, was that the United States had to make sure that no one could get the hold of nuclear technology unless they were an ally of the United States. Civil use could always progress into military use. Although that view took a back seat for a long time, one senses that it never died away completely and in recent years it has begun to come forward again in the American mind and thinking.
	I say that because one has noted a number of comments of this kind and can see the different approach to Iran and in the way the 2006 US national security strategy worryingly undermines the other element of NPT—not only the side saying that everyone should have nuclear technology for civilian use but also the commitment of the "haves" in the form of the nuclear powers, that they would never use nuclear military power to blackmail those who do not have it. But we have a doctrine of pre-emption—if a terrorist attack was made on the United States using a dirty bomb, the US would feel able to pre-empt and respond to such an attack against any country which it felt might be associated with it. Of course, the people of the Middle East, with all that has been said about Iran, feel particularly vulnerable. In fact, sometimes I think that the big message of the Iraq war for any country on the other side of the argument from the United States is: get a bomb and there is a fair chance you won't be attacked. Certainly that is the message I hear from people in the Middle East. If Saddam had really had a bomb, he would not have been attacked.
	That leads me to the strategic question to put to Her Majesty's Government: which of these strategic approaches is now being adopted? Is it the multilateral approach which says that everyone should have the option and that those of us who have the military technology will, along with others, negotiate to reduce it while encouraging everyone towards the practical civilian use of nuclear energy at a time of increasing difficulties regarding energy supplies, or do we find ourselves pulled towards what I have described as the Groves doctrine, that it is only our allies we can trust with the technology because it can always be used for military purposes? The reason for concern about this is because when considering Iraq, the argument heard in your Lordships' House went something like this: "Well, they have WMD". Later it became, "Well, they have WMD programmes". The next argument was, "Well, they have the technology to develop WMD—covert programmes". Finally the argument became, "Well, they have the people who know how to do this".
	I fear that we see the same kind of argument beginning to develop over Iran and nuclear technology. "They have got it". "No, they haven't got it but they do have programmes to develop it, which is urgent". Of course, Mr Negroponte recently remarked that it may not happen for 10 years, but they have the people who could do it if they really wanted to. That is a very dangerous argument. Indeed, I was particularly concerned when the Foreign Secretary, the right honourable Margaret Beckett, commented that there are "two paths ahead" and that:
	"We urge Iran to take the positive path and consider seriously our substantive proposals".
	That, I presume, is the multilateral approach of talks. But the Foreign Secretary referred to two paths. The suggestion that Her Majesty's Government are beginning to tinker with what I have described as the Groves understanding which now informs some senior people in the US Administration is worrying. I therefore seek the noble Baroness's reassurance that that is not a strategic shift on the part of Her Majesty's Government and that we will have a serious debate and discussion within our scientific and political communities and in the community at large over how to address this seriously deteriorating situation.

Baroness Crawley: My Lords, I must remind your Lordships that this is a time-limited debate and that the Minister has already lost three minutes of her time to reply.

Lord Garden: My Lords, I, too, thank my noble friend Lady Williams of Crosby for arranging this important debate. As other noble Lords have said, the timing is perfect given the launch of the Hans Blix commission report on weapons of mass destruction over the past week. The report analyses the threats from what the commission assesses are 27,000 nuclear weapons still around on the globe, as well as the potential threat from those who wish to acquire such weapons. In a debate of one hour, we can scarcely do justice to the 60 different recommendations made in the report. I hope that the Minister will tell us that the Government are going to study the Blix report carefully. Perhaps, for once, they might come up with a reply to the report showing how we will take forward those 60 recommendations.
	Our minds are focused on the impending crisis over Iran's nuclear enrichment programme and the potential proliferation implications. No doubt we will come back to that in other debates but, as my noble friend Lord Alderdice has highlighted, nuclear proliferation by states has been a relatively slow business. Over the past 60 years, nine states have become nuclear—the big five, India, Pakistan, Israel and probably North Korea. A number—and it is more than just South Africa and the three previous Soviet republics—have abandoned their developments along the way to nuclear weapons over the years. We need to remember that the web of arms control measures, although they have not been 100 per cent effective, has played a significant role in constraining proliferation by states.
	There is much more that we should do to put new life into the arms control process but it is clear that some of the major players currently lack commitment. This is evident not only in the extraordinary increase in nuclear weapons spending by the United States; I was in Paris last week listening to the French proposals for new systems and a new doctrine which run counter to the aims of the non-proliferation regime.
	However, the dangers from nuclear proliferation are now as much about the possibility of both fissile material and expertise being transferred illegally for either financial or ideological reasons. Despite the benefits that the noble Lord, Lord St John of Bletso, saw with nuclear power, it does of course release yet more fissile material to be used illegally. This raises the small but finite possibility of non-state actors gaining access to nuclear weapons. Few experts believe that it is likely for the foreseeable future that it will be possible for such groups to manufacture a fission bomb from scratch. The problem arises from access to ready-made weapons—or to highly enriched uranium—that have already been produced by states.
	The source of these risks is very clear. Since 1995, the IAEA has maintained an illicit trafficking database, which records 662 confirmed incidents of theft, 18 of which involved highly enriched uranium or plutonium, including a few cases involving kilogram quantities. Both the United States and Russia still have a large number of nuclear weapons, as we have heard, and an even larger stockpile of material that they need to safeguard. Russia has a particular problem in safeguarding old tactical weapons which may not have the permissive action links that would lock the weapons. There is also a particular worry, which we have not heard so far in the debate today, about Pakistan's weapons. We are aware that some of the extremist terror organisations operate illegally from within Pakistan and that the country has suffered instability in the past.
	But no nuclear weapon state can be complacent. Are we certain that United Kingdom weapons and materials are properly defended? I do not expect the details to be released into the public domain, but Ministers need to keep a regular check that standards are being maintained as we go down the route of more contractorisation and outsourcing of the public sector. Have we taken into account the lessons we learnt from Libya—now well documented—in terms of how the AQ Khan network operated, and have we put the appropriate countermeasures in place?
	The WMD commission report rightly states that we require,
	"many parallel and reinforcing approaches in the fields of arms control, disarmament, non-proliferation and anti-terrorism, at all levels—unilateral, bilateral, regional, plurilateral and global".
	In my view, the UK has got a good story to tell in terms of observing its NPT and other arms control obligations. I look to the Minister to tell us what proposals the Government have to take forward the arms control agenda from this position. In particular, what will the Government do to get movement on bringing the Comprehensive Test Ban Treaty into force and to negotiate a fissile materials cut-off treaty? Will the Government push for a global treaty to assure non-nuclear-weapon states against threats of attacks by nuclear weapons? These negative security assurances can reduce the incentive for proliferation. Finally, will the Government back the commission's call for a world summit at the UN on disarmament, non-proliferation and terrorist use of WMD?

Lord Astor of Hever: My Lords, I, too, thank the noble Baroness, Lady Williams, for introducing this important debate.
	The nuclear non-proliferation treaty was drawn up in a world order where the great danger was of a war between two nuclear superpowers, but the end of the Cold War and the development of a new global system have changed this. While proliferating states are still a concern, a new threat has emerged in the form of terrorist groups. Unlike states, terrorists do not need access to uranium mines, complex nuclear facilities or reliable delivery systems, as a dirty bomb alone would be sufficient to meet their ends. Nor can terrorists be deterred by traditional means. Whereas states seek nuclear weapons to deter potential attack, terrorists seek to use them to inflict havoc and destruction.
	Nuclear weapons technology is now easier to acquire, and the industrial capacity of states to manipulate such technology has improved vastly. We have seen the development of an international black market for nuclear material. The dismantling of the AQ Khan network was a success, but we still do not know the full extent of the materials and expertise that it provided to countries such as Iran, or whether elements of the network are still intact. The efforts of countries such as Iran and North Korea to subvert the NPT have eroded confidence in the treaty's ability to constrain proliferators.
	It is vital to British interests that Iran does not become a fully fledged nuclear power. There would be a real possibility of an arms race in the Middle East and serious implications for the future of the NPT regime if a country that had signed the treaty succeeded in using it as a cover to develop nuclear weapons.
	The Iranians continue to claim that all work done in this area is for civilian use only. They claim that their activities are legal under the provisions of the treaty and describe western objections as "bullying". It is true, as is frequently pointed out by those in Iran who would try to justify their nuclear work as research into nuclear energy rather than weaponry, that the non-proliferation treaty aims to promote co-operation in the peaceful uses of nuclear energy as well as to work towards nuclear disarmament. However, it was set up to operate in a climate of openness and mutual trust between countries. To this end, the International Atomic Energy Agency was established, with a clear warning that countries that hoped to divert nuclear technology and material into military uses would be identified and stopped. Iran's 18 years of concealment of its nuclear activities from the IAEA and repeated violations of its safeguards agreement does not inspire confidence. There are strong grounds to doubt that it is pursuing solely peaceful research.
	The IAEA concluded in April that Iran must go well beyond the terms of its agreements with the IAEA to restore international trust in its intentions, but instead of responding positively to this demand, Iran has accelerated its enrichment research and reduced IAEA access by ceasing to implement the additional protocol. Furthermore, the Iranian Government have ruled out a proposal for the country to meet its civilian nuclear power needs through a joint-venture enrichment programme in Russia, an opportunity that Iran would surely grasp if its intentions were purely peaceful. The Iranian leadership has also made blunt threats to disrupt the flow of oil to international markets.
	I hope that consistent international pressure will lead Iran to clarify all outstanding issues with the IAEA, to demonstrate conclusively that its nuclear programme is for civilian purposes only and to make the commitments that could lead to an improvement in its relationship with the rest of the world. I add my voice to those who have spoken in support of the US Government's offer of talks with Iran if it agrees to suspend its uranium enrichment activities. This is a very positive step towards a diplomatic resolution of the current crisis, and I hope that Iran will respond fully.
	The debate about Iran serves to highlight how much the world has changed since the nuclear non-proliferation treaty was signed. At least three countries now have nuclear weapons which are not governed by the treaty and two more are attempting to join them. We must not let the treaty become an irrelevance as more countries develop nuclear weaponry outside its framework. Will the Minister give any indication that serious steps are being taken to establish a worldwide protocol to cover these countries? Can she explain what plans the Government have to monitor and regulate future agreements between countries that have signed the nuclear non-proliferation treaty and those that have not? Finally, what steps are the Government taking to ensure that past unauthorised exchanges of nuclear technology such as that which passed between North Korea, Pakistan and Libya do not happen again?

Baroness Royall of Blaisdon: My Lords, like other noble Lords I thank the noble Baroness, Lady Williams, for securing this all-too-short debate and for highlighting the continuing relevance and value of the non-proliferation and disarmament regime, albeit a more fragile regime than we all would wish. Her excellent analysis has illustrated why the non-proliferation treaty must remain the cornerstone of the UK's counter-proliferation policy. But clearly the non-proliferation and disarmament regime continues to face real and pressing challenges, as outlined so recently in the excellent report by Hans Blix. I can assure the noble Lord, Lord Garden, that the Government are carefully examining the Blix report in relation to calls for a world summit. As the UK is certainly committed to progress in a multi-disarmament forum, a world summit could be considered.
	As noble Lords will be aware, our efforts last year were focused principally on the review conference and on the Millennium World Summit last September. In both, the United Kingdom worked tirelessly to achieve ambitious and balanced outcomes with strong commitments on non-proliferation and disarmament. The final result was disappointing. However, the lack of a formal outcome should not detract from the real gains. There was a lot of good and detailed discussion of ways in which the treaty could be strengthened and we intend to take those forward in the different international forums. The EU, for example, put forward ideas on measures to discourage withdrawal from the treaty and those drew widespread support. The very fact that the EU reached a common position on the NPT continues to be useful.
	On the Millennium Review Summit, noble Lords will recall that the then Foreign Secretary, Jack Straw, was personally involved in an initiative led by Norway that would have offered a substantive strengthening of international commitments on non-proliferation and disarmament. In this instance the UK was operating in a purely national capacity. We were prepared to work with six other countries, including South Africa, that have wide-ranging positions on these issues and we were successful in finding much common ground on which we could proceed towards the shared aim of strengthening international non-proliferation. However, while it was not possible at the summit to make substantive progress, more than 80 countries openly supported the initiative. We continue to be engaged with the initiative and look forward to further opportunities to take forward the group's agenda.
	The nuclear non-proliferation regime will continue to face new challenges, but we believe that these challenges serve to bolster support for it rather than to undermine it. We share that commitment with an overwhelming majority of states and we will continue to use all available international forums to build consensus to strengthen and reinforce the regime. For example, we are taking every opportunity to encourage all states to adopt the IAEA's additional protocol. The UK supports the 2006 EU joint action in support of the IAEA, as we did last year, and this provides substantial EU funds for pursuing nuclear safety projects in target countries. I recognise, of course, that it requires further money.
	We have also been at the heart of negotiations for a new and strengthened mandate for the committee reporting on UNSCR 1540. We are actively working with others to formulate appropriate incentives for countries to forgo fuel-cycle facilities. We fully recognise the right of states that comply with their obligations under the NPT to use and benefit from nuclear technology as set out in Article 4. As the noble Lord, Lord Alderdice, said, you cannot stop knowledge. It is clear that the nuclear fuel cycle presents particularly acute proliferation risks. We are currently working with the US and other international partners to develop a fuel supply mechanism that we hope to put before the IAEA for approval before the end of this year. We are also working with G8 partners towards more technically advanced solutions that would allow states to reap the benefits of civil nuclear energy without the risk of further transfer of proliferation-sensitive technology. Connected to this is our work to strengthen the Nuclear Suppliers Group.
	These are all significant steps to counter the dangers of nuclear proliferation. But our record also demonstrates that we have made progress in nuclear disarmament. We take our disarmament obligations under Article VI of the NPT very seriously. As noble Lords have said, we have an excellent record in that area. Since the end of the Cold War we have reduced the total explosive power of our nuclear forces by more than 70 per cent. We are the only nuclear weapon state to have reduced its deterrent capability to a single nuclear weapons system, Trident. I assure the noble Lord, Lord Hannay, that full account will be taken of our commitments under the NPT when the forthcoming decision on Trident is taken.
	We continue to press for multilateral negotiations towards mutual, balanced and verifiable reductions in nuclear weapons. Of course, we remain fully committed to the Comprehensive Nuclear Test Ban Treaty (CTBT). We promote its entry into force bilaterally at every relevant opportunity. We will continue to pursue what we see as the next step in achieving progress on disarmament; namely, the immediate commencement of negotiations on a Fissile Material Cut-off Treaty (FMCT). We welcomed the draft FMCT text and mandate for an ad hoc negotiating committee, tabled in the Conference on Disarmament in Geneva by the US on 18 May. We also welcome the fact that India has committed to work with the US on an FMCT.
	Naturally, we watch with interest the discussions in the US Congress on India. We believe that there are clear benefits to be gained from bringing India further into the broader nuclear non-proliferation framework. This will strengthen this broader framework, which is underpinned by the NPT. We have strongly supported the initiative from its inception and have been actively involved throughout.
	The Government welcomed the 19 September statement of principles by the parties to the six-party talks. We have consistently urged North Korea to return to the talks so that these principles can be converted to real progress. We greatly regret that progress has not yet been made. But, although we are firm supporters of the process, the UK is not one of the six parties, so we have limited influence on the progress of the talks.
	Many noble Lords understandably referred to Iran. The Government warmly welcomed the announcement by the US that it would be willing to participate in negotiations with Iran, provided Iran resumed its suspension of all enrichment-related and reprocessing activities. This explicit statement, and the support expressed in Vienna last week by the Foreign Ministers of China and Russia, greatly enhances the attractiveness and weight of the proposal presented to the Iranian authorities in Tehran this morning by Javier Solana. I was pleased to see BBC reports that, according to the Iranian negotiator, today's talks have been constructive. But if Iran fails to re-engage, it must be clear that there will be consequences. We have worked to clarify thinking among key partners on the measures that the Security Council might take to further increase pressure. I assure noble Lords that, following the Foreign Secretary's Statement last week, there has been no strategic shift in our policy.
	The noble Lords, Lord St John of Bletso and Lord Dykes, referred to Israel. We have consistently urged Israel, as a non-nuclear-weapon state, to accede to the NPT. We have also consistently supported UNGA resolutions calling for the establishment of a Middle East zone free of weapons of mass destruction. That would, of course, include Israel.
	Today, as the noble Lord, Lord Astor, clearly stated, we must also consider the possibility that the threat of WMD proliferation and international terrorism will one day converge. The G8 global partnership against the spread of weapons and materials of mass destruction has committed to meet this challenge through raising up to $20 billion for the threat reduction projects the noble Baroness has described.
	The UK has demonstrated its willingness to shoulder its share of responsibility for countering this threat. In 2002, the Prime Minister pledged up to $750 million to the global partnership. Almost four years on, the UK programme is fully operational and delivering £43 million worth a year of measurable progress on the ground. In the past year alone, the UK has finished dismantling three nuclear submarines, constructed a new £20 million facility to deal with spent nuclear fuel as well as establishing projects to create 1,000 new jobs for former weapons scientists in the closed nuclear cities.
	The noble Lord, Lord Hannay, asked about progress under the G8 this year. As noble Lords will know, Russia has chosen to focus on energy security, and while G8 leaders are expected to agree a non-proliferation statement, it will focus on present challenges such as Iran as well as the non-proliferation implications of energy security. In closing, I reiterate that despite the many and varied challenges that the non-proliferation regime faces, the Government fully support and will continue to seek every opportunity for forward movement to uphold and strengthen the non-proliferation and disarmament agenda.

Government of Wales Bill

House again in Committee.
	Clause 103 [Proposal for referendum by Assembly]:
	[Amendments Nos. 84 to 86 not moved.]
	Clause 103 agreed to.
	Clauses 104 to 106 agreed to.
	Clause 107 [Legislative competence]:
	[Amendment No. 87 not moved.]
	Clause 107 agreed to.
	Schedule 7 [Acts of the Assembly]:
	[Amendment No. 88 not moved.]
	Schedule 7 agreed to.
	Clauses 108 and 109 agreed to.
	Clause 110 [Proceedings on Bills]:
	[Amendments Nos. 89 and 90 not moved.]
	Clause 110 agreed to.
	Clauses 111 to 113 agreed to.
	Clause 114 [Royal Assent]:
	[Amendment No. 91 not moved.]
	Clause 114 agreed to.
	Clause 115 agreed to.

Lord Roberts of Llandudno: moved Amendment No. 92:
	After Clause 115, insert the following new clause—
	"PUBLICATION OF LEGISLATION
	(1) It shall be the duty of the Welsh Assembly Government to—
	(a) publish all Assembly legislation on its being made; and
	(b) establish and maintain a register of all Assembly legislation.
	(2) In this section "Assembly legislation" means all legislation made by the National Assembly for Wales, the Welsh Assembly Government, the Welsh Ministers, the Welsh Deputy Ministers and staff of the Welsh Assembly Government.
	(3) All Assembly legislation shall be made in a form prescribed by the First Minister.
	(4) The form and location of the register shall be prescribed by the First Minister.
	(5) All Assembly legislation made prior to the coming into force of this Act shall be published and entered in the register within twelve months of the date of the coming into force of this Act.
	(6) Assembly legislation which is not published and entered in the register in accordance with the provisions of this section shall be void and of no legal effect."

Lord Roberts of Llandudno: The amendment relates to the publication of legislation, and it calls simply for a duty on the Welsh Assembly Government to publish all legislation when it is being made and to establish and maintain a register of all Assembly legislation. I would think that the unwillingness or the lack of mention of this issue in the Bill is more of an oversight than the result of a deliberate intention. All those affected by a law need to have access to it; I am sure that on all sides of the House we would accept that. The main gap in legislation, I am told, is in the period between 1999 and 2005, but all the legislation made by the Assembly needs to be published as soon as it is made, as we say in the amendment.
	This is a cry not only from one political party but from the Law Society, Cardiff Law School, the Citizens' Advice Bureau and the British Medical Association, and those organisations are united in the request. To publish legislation is a requirement of the European Court of Human Rights and of Section 19 of the Freedom of Information Act 2000. It is a requirement of Standing Order 30 of the Assembly, and in common law it is a fundamental requisite of the rule of law that the law should be made known. Anything less is totally unacceptable. Westminster laws are available, so why not those of the Welsh Assembly? We have a new legislature and it should be able to make its laws known. It is as simple as that.
	If people do not know how the law on devolved matters affects them, how will they know whether they are in breach of it? On matters of health, how do doctors know whether they are transgressing? How do patients know if they want to make some complaint? In schools and so on, how do people know that they are on the right side of the law if they do not know what the law is in the first place?
	I believe that the Government will accept the amendment. We will not press it to a Division if they are reluctant to do so this evening, but we will certainly do so on Report. This is such a fundamental issue that I am certain that the Government will be ready to listen to the amendment and join us in making sure that all legislation of the National Assembly for Wales is published. I beg to move.

Baroness Finlay of Llandaff: I put my name to the amendment as well, and would like to try to explain briefly why it is incredibly important for people working in Wales that some form of register is established and maintained. As is the case with government departments, the Assembly produces a considerable amount of regulations, orders, directions, schemes and other subordinate legislation. It has powers authorising it to do so in Acts of Parliament. The Stationery Office prints and publishes legislation, in so far as the legislation is made by statutory instruments.
	The Assembly makes about 200 such general instruments a year. However, on top of this is subordinate legislation—it usually consists of directions, many types of orders, and schemes—which is not required to be made by statutory instrument. With very few exceptions, the Stationery Office does not print and publish such legislation. The method of printing and publication is left to individual government departments and the Assembly to decide, and there is a problem with the Assembly. Until January this year, the Assembly, including the Assembly Government, had no established system of printing or publishing this legislation. In most cases it was impossible to find the legislation on the website, and there was no central register of such instruments to consult. Since January, the Assembly and Assembly Government have established a register and ensured that all legislation follows the same format. The problem is that there are no plans to do that for pre-January 2006 non-statutory instrument subordinate legislation.
	Since its creation in 1999, it is estimated that the Assembly Government have probably produced at least the same amount of non-statutory instrument legislation as the number of statutory instruments. In other words, another 200 pieces of legislation a year have gone through, but no one can find them. In total, there must be about 1,000 pieces of law made by the Assembly Government that are not generally available to the public or public organisations.
	In the field of health, in which I work, most of the Assembly Government's legislation is produced by means of directions. Such directions are not usually required to be made by statutory instrument so are not printed by the Stationery Office. Because the Assembly Government have no system of publication or registering such legislation, it is usually impossible to find most of the law made by the Assembly on health matters in Wales. The only way in which you can have it is if you have personally accumulated the bits as they have come through. This is a serious concern, particularly to the BMA, but also to the Law Society and firms of solicitors that specialise in advising health bodies in Wales. The Department of Health regularly registers, publishes and updates such legislation made by it, but that no longer applies to Wales. Worryingly, in a letter to the Wales committee of the Law Society, the Assembly Government gave no undertaking to publish their pre-January 2006 legislation. They even hinted that their present practice of publishing may not necessarily continue after the next Assembly elections, in May 2007. Indeed, it is hard to see how a client who goes to a solicitor to seek legal advice could have redress if that solicitor had been ignorant and unable to access, by searching, a particular instrument pertinent to that client's case.
	As the noble Lord, Lord Roberts of Llandudno, said, lack of knowledge of the law breaches the principles of common law and human rights. The Assembly's publication scheme has operated under the Freedom of Information Act, in which the Assembly Government undertake to ensure publication of all their laws. Unfortunately, there are few sanctions under that Act if such an undertaking is not fulfilled.
	I hope that noble Lords can see that, if 1,000 pieces of law are difficult to trace, that will accumulate in time and without a proper central register and a duty to maintain it, it will become increasingly difficult to ensure not only that the legislation is relevant and pertinent, but that it is abided by.

Lord Roberts of Conwy: I, too, support the new clause and have put my name to it. It is promoted by the Law Society and supported by the BMA in Wales. It is important because it is obviously vital that legislation is publicly accessible and that people know what the law is. I regret that, apparently, that has not been the case in Wales after devolution in spite of the persistent and sterling efforts of the Cardiff Law School team, led by David Lambert, formerly a law officer at the Welsh Office. I knew him personally during my ministerial years and valued the near-infallible quality of his advice.
	The Government have been aware for some time of this serious deficiency whereby the legal system cannot operate properly. Solicitors cannot properly advise their clients and risk actions for negligent advice. But remedial action has been taken only belatedly. The Presiding Officer has established a system to produce and publish legislation on the Assembly's website as from January this year—but, as the noble Baroness, Lady Finlay, said, the period before that has not been provided for.
	Figures provided by the Law Society estimate that some 1,200 pieces of non-general statutory instrument legislation have been made each year since the National Assembly was established in 1999—that amounts to more than 6,000 in all—and they are still in a mess. So bad is the situation that the Law Society suggests that, if that legislation cannot be sorted out and registered within a year of this Bill being enacted, it be declared null and void. That is provided for in this new clause, which also lays a duty on the Assembly Government to publish legislation and to maintain a register of it, which is surely where their duty should lie.
	Much more could be said, but as we are trying to hurry along to the end of the Committee stage this evening, I shall refrain from doing so.

Lord Prys-Davies: Notwithstanding that injunction by the noble Lord, Lord Roberts of Conwy, I should like to take the time of the Committee in fully supporting this important amendment. I deeply regret that it has been necessary to bring such an amendment before the Committee, but I fully support the principle on which it is based. That principle is set out in paragraphs (a) and (b) of subsection (1), which state:
	"It shall be the duty of the Welsh Assembly Government to . . . publish all Assembly legislation on its being made; and . . . establish and maintain a register of all Assembly legislation".
	That is a profound principle. Quite simply, it is an aspect of the rule of law that the citizen and his advisers, be they medical or legal, must have access to the law of the land in an authentic form. Indeed, some of us will recall that in a case involving the Home Office in 2003 we were reminded by the Master of the Rolls that if the law cannot be accessed, be read by the citizen or his advisers and be known with certainty, that may lead to injustice.
	Like others, I have received from the Law Society and the BMA in Wales well researched analysis of the information which is currently available about the subordinate, non-statutory instrument legislation made by the Assembly since it was set up. A 100-page document has been produced. It comprises two volumes and is entitled, Finding Subordinate Legislation on the National Assembly Website. It is an important document.
	My comments in support of the amendment are based in part on the rule of law and in part on my understanding of the analysis of that document. As has been said, it demonstrates that very many laws made by the Assembly between July 1999 and December 2005, other than laws made by general statutory instruments, are probably inaccessible. The noble Baroness, Lady Finlay, estimated the number of laws made between those two dates at 1,200 and the noble Lord, Lord Roberts of Conwy, gave another figure of 6,000, so this is quite a problem.
	Having studied the document, I have to say that finding this legislation on the Assembly website—as the noble Baroness, Lady Finlay, said, it can be accessed only on the Assembly website; it cannot be found anywhere else—is a task of considerable complexity involving considerable delay. When it is found, it may be in the form of a circular or guidance setting out clarification, but in some cases the clarification is phrased in such a way that it is unclear whether the guidance is law or not law. It is even said that the circular or guidance may contain conflicting paragraphs as to its legal status. Thus, it is implied that, when it is found, there is no indication of whether the guidance has expired or whether it has been amended, repealed or superseded.
	I deeply regret having to make this speech. I have been a devolutionist all my life, but there is a very serious constitutional objection to this state of affairs continuing. I support Amendment No. 92 because it seems to tackle the mischief. I sincerely hope that the Minister will assure the Committee that the amendment will be given the fullest consideration by the two Governments.

Lord Crickhowell: I warmly support the amendment, but I have a question. Why is it suggested that the Assembly legislation,
	"shall be made in a form prescribed by the First Minister",
	and that the,
	"form and location of the register shall be prescribed by the First Minister"?
	I am not sure why that is being proposed. One can see an argument for thinking that it should be made on the authority of the Assembly, or possibly by the clerk to the Assembly, but it does not seem to me to be appropriate that it should be done on the authority of the First Minister. I confess that I am not entirely clear on the arrangements in Parliament, but I cannot believe that it is done on the authority of the Prime Minister. If it is, I shall be surprised. Perhaps the Minister could enlighten me on that. If there is an alternative, perhaps he could suggest what it should be.

Lord Prys-Davies: I, too, have been baffled by that wording and I had so informed the BMA in Wales. It appears to me that this is either a decision for the legislature or for the Executive. I am puzzled that the matter should be addressed to the First Minister.

Lord Davies of Oldham: I am grateful to all noble Lords who have contributed to the debate, not least to the noble Lord, Lord Crickhowell, who gives me an entrée into what happens with regard to general legislation. One of the objections to the new clause is that it would cut across existing practice and duties relating to the publication of legislation, which I intend to develop in a moment. My second objection is that it makes no provision about the validity or otherwise of things done under or in pursuance of the legislation that becomes void. That would leave the rights and obligations of persons affected by such legislation in a very precarious state. Thirdly, this is retrospective legislation with a vengeance. It renders void all Assembly legislation if the Assembly has not complied with the provisions of the amendment. That is a nuclear weapon, if ever I heard of one, in relation to legislative practice.
	It is not for this Bill to remedy what the Assembly may or may not have done in the past; this is a matter for the Welsh Assembly Government and for the Assembly to consider now, and for Welsh Ministers to consider in the future. The purpose of the Bill is not to deal with such issues.
	I say in response to the very pertinent question put by the noble Lord, Lord Crickhowell, that ultimate responsibility for the publication of legislation in the UK rests with the Queen's Printer, acting under Royal Letters Patent on behalf of the Crown. The Controller of Her Majesty's Stationery Office is designated as Queen's Printer of Acts of the UK Parliament, Queen's Printer for Scotland and Government Printer for Northern Ireland, and has responsibility for the arrangements under which all UK legislation is published.
	Resting that responsibility in one body ensures coherence in that all UK legislation is available to all in a consistent form and from a single location. This amendment would cut straight across that arrangement. Under the arrangement, the Queen's Printer will continue to have responsibility for the publication of statutory instruments made by the Welsh Ministers, as existing statutory arrangements relating to the publication of subordinate legislation made as statutory instruments will continue.
	The Crown will have a general obligation to ensure publication of Assembly measures and Acts, and it is intended that administrative arrangements will be made with the Queen's Printer regarding their numbering, printing and publication. It is expected that the Queen's Printer will adopt a similar approach to the publication of measures and Acts of the Assembly as currently occurs for all other UK legislation; namely, publication in print and on the internet via the official legislation website, followed by production of a printed annual volume. The Queen's Printer will also ensure that users such as commercial legal publishers are able to access the legislation in appropriate formats.
	By placing a duty on the Welsh Assembly Government to publish Assembly legislation, this amendment would break with established practice for the publication of legislation and introduce unnecessary complexity for citizens and the courts that need to be able to access the UK's legislation. Of course the Government are sympathetic to the concerns—I appreciate all contributions to the debate, but they were expressed pertinently by the noble Baroness, Lady Finlay—of those who have argued the case for creating a single reference point for legislation relating to Wales, but the Bill will make it easier to identify new legislation as it relates to Wales. Schedule 5, for measures, and Schedule 7, for primary powers, are intended be the sole source of the Assembly's legislative competence. Where measure-making powers are conferred on the Assembly, this will be done by amending Schedule 5, so it will be easy for the public to see and locate in one place what the Assembly's legislative competence is.
	Many noble Lords will be aware that the Welsh Assembly Government and the Assembly's House Committee have jointly encouraged and supported the Wales Legislation Online website maintained by Cardiff Law School—to which the noble Lord, Lord Roberts of Conwy, made reference this evening—which provides access to information on Welsh legislation to those who might not have ready access to other sources. From May 2007, the publication of non-statutory instrument subordinate legislation will be a matter for the Welsh Assembly Government. It is expected that the Welsh Ministers will continue arrangements for publication to the internet, but that is, of course, a matter for them.
	The Welsh Ministers will also be, as are all Ministers, subject to the duty under Section 19 of the Freedom of Information Act 2000 to have and maintain a publication scheme that can be reviewed by the Information Commissioner. The scheme must set out classes of information that the Welsh Ministers publish or intend to publish.
	I hope that it will be recognised that we have thought carefully about this issue. The Bill provides for an extended ability for the citizen to identify Welsh legislation that affects them. We have arrangements for UK legislation as a whole, and I hope that it will be recognised that any arrangements that need to be made in Wales are a matter for Welsh Ministers and not for this Bill.

Baroness Finlay of Llandaff: While the Minister is on his feet, will he clarify something for me? If I understood correctly, he said that the Queen's Printer is currently responsible for having published legislation up to 2005. Therefore, if that legislation has not been published, there has already been a breach of contractual obligations. Although the Minister is referring to information on legislative competence being published and made available, it is the minutiae of the regulations that are causing problems for people in the Welsh workplace; it is the fine detail, rather than the legislative competence, that they cannot access.
	I am not sure where protection of the citizens in Wales is going to come from if this is left as a matter for the Welsh Assembly Government after May 2007, and if they decide that they are not going to continue with that arrangement for printing. Will the Minister clarify how the citizens of Wales will be protected and able to access the minutiae of legislation in the future? We have an obligation to ensure that all citizens across the whole of Britain can access legislation that may be pertinent to them.

Lord Davies of Oldham: I realise that there are issues with the precise detail of legislation. First, however, I have shown that the broad principles of developing Welsh legislation will be easier to identify because the Bill makes provision for that.
	When it comes down to the particular detail, is the noble Baroness suggesting that Welsh Ministers, exceptionally and separate from all other members of the Executive in the United Kingdom, will set out to establish a system inferior to that which currently obtains?
	I do not see why it would be in their interest to do so, but even if it were conceived of that somehow it was, I have already identified ways in which they can be held to account and in which they are under obligations. That is the only answer that I can give to the noble Baroness's question.

Lord Prys-Davies: My noble friend on the Front Bench made the fair point that it may not be for this Bill to prescribe how the Welsh Assembly is to make its legislation accessible. I accept that, but the problem remains. I shall give one example of it: the direction powers issued by the Welsh Assembly Government to housing associations in Wales. I understand that the Library of the Welsh Assembly has confirmed that no comprehensive list of directions issued to the housing associations between July 1999 and December 2005 is available. Is that a satisfactory state of affairs? Is that not a mischief that ought to be attend to and corrected, but not necessarily by this Bill? I am not sure whether it should be done by the legislature or the executive of the Welsh Assembly, but it should be corrected. I will be looking for an undertaking along those lines.

Lord Davies of Oldham: I hear what my noble friend says, and I recognise that he has drawn attention to an issue where there may be a necessity for remedy, but not in this Bill.

Lord Roberts of Llandudno: I am more grateful for the last sentence the Minister uttered than for anything else that he has said. I listened carefully to what the noble Lord, Lord Prys-Davies, and the noble Baroness, Lady Finlay, said, and I share their concern. There is a gap where legislation should be in the public domain, but we have a black hole where people in Wales do not know what the correct law is. I hope that between now and Report the Minister will consider introducing a government amendment in order to make legislation accessible.
	The Minister's reply deserves serious reading and consideration. Those of us who received information from organisations such as the BMA, the CAB and the Law Society will be contacting them to see whether the Minister's reply satisfies their requirements. I am sure that we will come back to this on Report, as we believe legislation should be in the public domain and we are not yet convinced. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 116 agreed to.

Lord Livsey of Talgarth: moved Amendment No. 93:
	Before Clause 117, insert the following new clause—
	"ALLOCATION OF FUNDS
	(1) The Secretary of State shall appoint a panel of not fewer than four and not more than six experts to recommend the sums of money to be allocated to the Welsh Consolidated Fund.
	(2) The Secretary of State shall publish in full the terms of any recommendations made under subsection (1).
	(3) The panel shall have regard to—
	(a) fairness,
	(b) transparency, and
	(c) the particular needs of Wales."

Lord Livsey of Talgarth: Amendment No. 93 inserts a new clause before Clause 117, which relates to grants. It concerns the allocation of funds. Subsection (1) of the new clause requires the Secretary of State to:
	"appoint a panel of not fewer than four and not more than six experts to recommend the sums of money to be allocated to the Welsh Consolidated Fund".
	Subsection (2) requires the Secretary of State to publish the recommendations and subsection (3) requires the panel to,
	"have regard to fairness . . . transparency, and—
	most importantly—
	"the particular needs of Wales".
	The question is whether Wales is getting fair play in financial terms. All the evidence is that it is not. In fact even the noble Lord, Lord Barnett, admits that the Barnett formula is in need of an amendment—indeed, I have heard him say that it needs replacing with another formula. We want to right a number of wrongs in this fair distribution. Since the Assembly was formed the GDP per head has stubbornly remained at around 80 per cent of UK averages. The consequence is that there is still much poverty and deprivation in parts of Wales. The needs of Wales are very great indeed.
	In terms of demography there is no doubt that we have a higher than average percentage of elderly and pensioners than most of the rest of the United Kingdom. We have a lot of people on low incomes, which is a consequence of the low GDP, and many people are on state pensions only. At the same time young people are leaving Wales and being replaced by pensioners in a population exchange which does not necessarily assist the economic needs of Wales. That is compounded by health needs where we have many former manual workers who are not on the whole in very good health because of their lifetime work experience. That, combined with a number of older people, means that there is great pressure, for example, on the health service. Certainly about two months ago, there was a £93 million deficit in health funding in Wales. There is no doubt that there is a shortfall in the Barnett formula in the funding of health in that fraction of the block grant to Wales.
	There are other questions which are very important in rural Wales: for example, the population scarcity and an inadequate formula for funding sparsely populated areas. I know quite a lot about that as I live in an area with the lowest population density south of the Highland line. We have been subjected to reductions in funding by the watering down of the formula. We have a lack of transport links in many places and accessibility to services is very difficult indeed. It is absolutely vital that this amendment is given sympathetic consideration to meet the needs of Wales and its people.
	This is not a fair situation at the present time. Wales lags 17 per cent behind the GDP of Scotland and gets 10 per cent less of the Barnett formula award in comparison with Scotland. Fairness in relation to needs is absolutely vital and it must be a fundamental principle. We believe that this can be ironed out with an amendment, which is perhaps not precisely the same but certainly similar, because we need to put these wrongs right and, indeed, this is an ideal opportunity to do so. I beg to move

Lord Crickhowell: I think that this is one of the most bizarre amendments that I have read, even from the Liberal Democratic Benches. To begin with I do not have the faintest idea of what constitutes an expert in this context. The Liberal Democrats are going to appoint six experts to recommend the sums of money. We are told that the Barnett formula needs a replacement. That is possibly so, although I am bound to say that in the days when I had responsibility as Secretary of State for Wales, I was very careful to sit silently while my Scottish colleagues were being chastised about the excessive rewards that went to Scotland under that formula in a changing situation.
	I was always well aware that, certainly in those days, Wales did rather well out of the Barnett formula, not least in the field of local government, where Welsh local authorities undoubtedly did extremely well. It may be that things altered later—my noble friend Lord Roberts of Conwy may tell me that it all changed after those days—but I would be very hesitant to rush too easily down this road, because some might argue for experts to be appointed to represent the English regions, such as the north-east. When I was in Cabinet, passionate cases used to be advanced that the north-east did particularly badly, certainly compared with Scotland, but also with Wales.
	If this amendment were accepted in its present form, we would get into a very interesting bidding war. I must say it would give me a certain amount of entertainment to see all these experts and various parts of the country going to meet the present Chancellor of the Exchequer. I think that he might give them rather a rough ride. He would certainly tell them that, if the experts wanted more, someone else would have to get less. Either the Chancellor of the Exchequer would have to find more, and presumably increase taxation or find some other solution, or the other departments of state would have to get less so that Wales got more.
	As it happens, I was having a conversation a littler earlier in the evening with my noble friend Lord Fowler, and we were looking back to the past. I always used to keep a very attentive eye on the way in which my noble friend, then Mr Norman Fowler, put his case for more resources for health and social services. I always hoped that he would do well, because I was aware that Wales got a formula share of everything extra that he got and that we would do rather well out of it, so he always had my support. Although I understand the desire of the noble Lord, Lord Livsey of Talgarth, to ensure that Wales gets its fair share—we would all like Wales to get more, if that is possible—I do not really think he has produced a solution or a formula that is likely to be acceptable to anyone or workable in any normal sense of the word.

Lord Evans of Temple Guiting: As was pointed out in a debate in another place, the issue of funding for Wales, to which this amendment relates, is inseparable from the issue of public expenditure in the UK as a whole. No rational resource allocation system could ever consider the funding needs of one part in isolation from the whole. It would be quite impossible to manage a budget-setting process in this way. We heard that my noble friend Lord Barnett feels that the Barnett formula is unfair to Wales. I have never heard that point made, and I agree with the noble Lord, Lord Crickhowell, that although the noble Lord, Lord Barnett, has complained about the use of his name in this matter, he has never to my knowledge made a specific comment about Wales.
	The Barnett formula is operated by the Treasury and determines the funding allocations for Northern Ireland, Scotland and Wales. The ambit of the Bill relates only to Wales. The Barnett formula has served the whole United Kingdom very effectively, working in practice to produce fair settlements for Wales in the past. We will continue to monitor the operation of the current formula to ensure that it is being applied properly and rigorously. The mechanism has some clear advantages for devolved government; it is simple and understandable, and thus provides a degree of stability in the consequential flow of resources to Wales, as well as allowing a very considerable degree of freedom for Administrations to take their own spending decisions. The Government considered the whole matter very carefully and concluded that there was absolutely no advantage in reopening the question of the Barnett formula.
	I would also draw your Lordships' attention to the fact that the amendment was debated, voted on and resoundingly rejected by 281 votes to 44 on Report in the Commons. We do not think that the noble Lord's amendment is either appropriate or required, and invite him to withdraw it.

Lord Livsey of Talgarth: I believe that the responses I have received to this amendment are entirely predictable, because they fly in the face of the facts. I have heard the noble Lord, Lord Barnett, say in this Chamber that the Barnett formula as it stands is unfair to Wales. As far as sceptical experts are concerned, the Liberal Democrats had a policy before the 1997 election—we still support it—to have a panel of experts to monitor the position and advise the Bank of England. I did not see any sign of the Chancellor not embracing that very rapidly after the 1997 election. All sides of the House have agreed that that has been a great success in keeping inflation down and an equitable solution. I cannot accept these arguments at all.
	The noble Lord, Lord Crickhowell, said that the north-east always seemed to lose out in relation to Wales. There is now very little difference between GDP in the north-east and GDP in Wales. They are the lowest areas of GDP in the UK. There is only a 1 per cent difference—one is 80 per cent and the other, I think, is 81 per cent. Of course, the Treasury has the allocation of the Barnett formula, but it is now undoubtedly inequitable, and for Wales it is very inequitable. It produces an element of stability, but it also seems to produce an element of complacency.
	I have a personal interest in this issue. My wife is Scots. But I think that the number of Scots in the Cabinet has something to do with why the Barnett formula is an immovable object. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 117 [Grants]:

Baroness Noakes: moved Amendment No. 94:
	Page 64, line 15, at end insert—
	"( ) Any person making a payment in accordance with this section may attach such conditions as he thinks appropriate and may specify the consequences that will or may occur if those conditions are not met."

Baroness Noakes: Amendment No. 94 would insert a new subsection in Clause 117. This is a probing amendment. Clause 117 deals with payments made from the UK Government to the Welsh Assembly Government. It covers payments by the Secretary of State to the Welsh Consolidated Fund and payments by Ministers and government departments to Welsh Ministers, the First Minister or the Counsel General. But Clause 117 does not say whether any conditions can be attached to those payments and, just as importantly, what the consequences would be of the conditions not being met.
	The purpose of this probing amendment is to ascertain the extent to which the Government will be able to have any control over the use of money which is transferred to the Welsh Assembly Government. That is particularly relevant in the case of payments under Clause 117(2) which is designed, as I understand it, to cover the case where UK Ministers wish to have one of their functions carried out by Welsh Ministers. Having made the payment, the money will generally go into the Welsh Consolidated Fund from where it can be spent only in accordance with Clause 123; that is, in accordance with a Welsh budget resolution or an enactment. It seems that once the money has left the hands of the UK Government, they have no further say in how the money is spent. I confess to being something of a novice when it comes to the rules of public accounting, especially when associated with devolution. So my probing amendment is designed to elicit from the Government a statement on the respective powers and responsibilities of UK and Welsh Ministers when money flows from UK coffers to Welsh coffers. I beg to move.

Lord Evans of Temple Guiting: The purpose of Amendment No. 94 would be to allow anyone making payments into the Welsh Consolidated Fund under Clause 117 to attach conditions to those payments and set out specific consequences that may occur if they are not met. The effect of the proposed amendment would be to allow both the Secretary of State when making payments under Clause 117(1) and Ministers and departments when making payments under Clause 117(2) to impose conditions on how the money they are paying into the Welsh Consolidated Fund is to be used.
	The ability to impose such conditions on payments made by the Secretary of State under Clause 117(1) would subordinate Welsh Ministers to their colleagues in Whitehall and could lead to them being required to implement Whitehall policies instead of those on which they were elected by the people of Wales. The Assembly is a democratically elected body accountable to the people of Wales; it is not an agency of central government.
	In relation to payments made under Clause 117(2), any functions that have been agreed to be undertaken in Wales on behalf of a UK Minister of the Crown or a government department would have to be set out in a budget resolution. Where ministerial agreement has been reached for certain functions to be carried out in Wales on behalf of a UK Minister or government department, it would be inconsistent and unnecessary for legal conditions to be attached to this. Furthermore, Clause 137 requires the Auditor General, when examining Welsh Ministers' accounts, to be satisfied that the money received by them for a particular purpose has been used for that purpose only.
	The provisions in Part 5 already provide sufficient control mechanisms to ensure that money paid to Welsh Ministers by the UK Government is spent only on the functions for which it was intended. Fundamentally, the amendment would fetter the democratic will of the Assembly government and is therefore, we believe, inconsistent with the devolution settlement. Given this explanation, with which I hope the noble Baroness will be satisfied, I would ask her to withdraw the amendment.

Baroness Noakes: I thank the Minister for that reply. Perhaps I may probe a little further on payments made under Clause 117(2). This is where a Minister makes a payment because he chooses to do so wholly in connection with his own functions for the UK. I think the Minister has said that no conditions can be attached and that it is to be spent in accordance with a budget resolution made under Clause 123. Therefore when the C&AG comes along, there would not be any conditions against which he could audit. So part of the Minister's argument in relation to those payments seems to fall down. It is important to ensure that UK Ministers can impose conditions on Clause 117(2) payments and that those conditions should have to flow right the way through the system. There has to be a form of legal requirement flowing into the budget resolution that does not exist independently, thereby producing something the C&AG can look at. Can the Minister clarify that point for me?

Lord Evans of Temple Guiting: I shall try. The money goes to Wales on behalf of a UK Minister, and as I said, this would have to be set out in a budget resolution. The real control is the Auditor General who, when looking at Welsh Ministers' accounts, has to be satisfied that the money has been used for the purpose specified in the first place. That is rather like a company having its accounts audited, so that if irregularities are spotted they are reported to the board. The noble Baroness is asking whether there is a mechanism that will always ensure that the money is spent on the purpose specified by the UK Minister. Our view is that yes, the mechanism is in place. However, I would be happy to write in more detail setting out the mechanism if the noble Baroness so wishes.

Baroness Noakes: I am grateful for that. While I do not want to detain the Committee, I should point out that the Minister has said that this must be set out in the budget resolution, but I am not sure where the Bill specifies that any conditions being applied have to be set out in such a budget resolution. I am afraid that I am going to have to ask the Minister to write to me because we would like clarification of this point. I should be grateful if he could explain how the combined effects of Clauses 117 and 123 achieve the result which we are agreed we would like to see achieved by the legislation. With that, I shall be content. If not, I shall want to return to this issue on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 117 agreed to.
	Clause 118 agreed to.
	Clause 119 [Destination of receipts]:

Viscount Simon: Before calling Amendment No. 95, I should point out to Members of the Committee that if it is agreed to, I cannot call Amendment No. 96 due to pre-emption.

Baroness Noakes: moved Amendment No. 95:
	Page 65, line 24, leave out subsections (3) to (7).

Baroness Noakes: In moving Amendment No. 95, I shall speak also to Amendment No. 96. Both amendments seek to amend Clause 119, which concerns receipts by Welsh Ministers and others.
	In general, receipts go into the Welsh Consolidated Fund except where an Assembly budget resolution or an enactment requires otherwise. But subsections (3) to (6) state that the Treasury can designate certain types of sum and have them paid to the Treasury. We should not perhaps be surprised to find that the long arm of the Treasury will be able to reach into the Welsh Consolidated Fund, but I think we are entitled to an explanation of why this power is necessary and for what purpose it is intended to be used. I turned to the Explanatory Notes to find out what sorts of sums the Treasury would appropriate under these powers, but the Explanatory Notes at paragraph 452 confine themselves to repeating the mechanism set out in Clause 119 without a single word of explanation. Amendment No. 95 seeks to delete subsections (3) to (7). I hope that the Government will be able to set out clearly their intentions in relation to these powers.
	Amendment No. 96 confines itself to subsection (7) and replaces the negative statutory instrument procedure, which will be used by the Treasury to designate sums under Clause 119, with an affirmative one. It seems to me that the powers of the Treasury to stage a smash and grab raid on Welsh money by virtue of Clause 119 should be constrained by something a little more meaty than the negative procedure—that is to say, the Government should have to come to explain to both Houses of Parliament why the Treasury should be allowed to act in this way. I beg to move.

Lord Crickhowell: I probably should have raised this point on the previous amendment. My noble friend has referred to the role of the Treasury in these affairs and, as we debated an earlier amendment, I kept saying to myself, "I wonder what the Treasury is going to do about this".
	In his response, the Minister constantly referred to the Assembly being responsible for the expenditure of the Welsh Consolidated Fund, but under Clause 135, which deals with examinations by the Comptroller and Auditor General, we learn that the Comptroller and Auditor General may report the results of any examination carried out under subsection (1) to the House of Commons. Paragraph 486 of the Explanatory Notes explains:
	"This is because the Welsh Consolidated Fund will be largely made up of monies voted by Parliament to the Secretary of State for Wales, and, in Parliament, the House of Commons controls the supply of finance to the executive".
	So it is not quite as simple as the Minister indicated previously—that the Welsh Consolidated Fund is a matter for the Welsh Assembly—because if it does not manage the fund sufficiently well to get approval from the Comptroller and Auditor General, the House of Commons can become heavily involved.
	So there are two ways in which the UK Parliament can become involved—in the form of Treasury interference and House of Commons participation—and it would therefore be very helpful before we get on to the next stage if the Minister could give some explanation of the exact relationship between the two and the circumstances in which he can envisage the House of Commons perhaps taking a fairly strong and hostile view if there was an adverse report from the Comptroller and Auditor General. These things happen. In a recent case, the Home Office was castigated by the Comptroller and Auditor General for not having had its accounts approved. If a major department of state such as the Home Office can get things disastrously wrong, the Welsh Assembly might get things disastrously wrong. If that happens, what follows from it? I should be grateful for some clarification.

Lord Livsey of Talgarth: We, too, support the amendment. Some pertinent questions have been asked.

Lord Evans of Temple Guiting: Clause 119 deals with those sums that need to be paid into the Welsh Consolidated Fund and those that do not. The normal position is that sums received by the Welsh Ministers, the First Minister, the Counsel General, the Assembly Commission, the Auditor General for Wales or the Public Services Ombudsman for Wales are to be paid into the Welsh Consolidated Fund unless one of the exceptions in Clause 119 applies. However, the clause includes a provision for the Treasury to make an order designating certain categories of receipt. This would mean that the Welsh Ministers would have to pay an amount equivalent to those receipts into the UK Consolidated Fund via the Secretary of State for Wales.
	Once the Welsh Consolidated Fund is established, the presumption is that moneys received by the Welsh Ministers, the Assembly Commission, the Auditor General and the Public Services Ombudsman for Wales will stay in Wales; that is, those sums will either be paid into the Welsh Consolidated Fund established by the Bill or be authorised by the Assembly to be retained by the relevant persons for use on their functions.
	However, a mechanism is still needed—albeit as the exception rather than the rule—which allows receipts which are collected on behalf of central government and which properly belong to central government to be paid back to the Treasury. The Treasury has a similar power under Section 64(5) of the Scotland Act 1998 to designate receipts which would otherwise be payable into the Scottish Consolidated Fund to be paid instead into the UK Consolidated Fund. An example of the sort of receipt which the Treasury might include in a designation order is the £100,000 a year which Pembrokeshire County Council is repaying against a loan made to it by the Wales Office for repair work to the Cleddau bridge.
	The Government are persuaded of the need to continue the facility for the Treasury to claim for the UK Consolidated Fund those receipts which properly belong to it. I therefore invite the noble Baroness, Lady Noakes, to withdraw Amendment No. 95, which would remove this facility completely.
	Amendment No. 96 would subject Treasury designation orders to affirmative parliamentary procedure. The Government prefer such orders to be subject to negative parliamentary procedure. Treasury designation orders under the Scotland Act are subject to a similar procedure to that proposed for Wales. The power is exercisable only after consultation with the Scottish Ministers. Under Section 115(1) of and Schedule 7 to the Scotland Act 1998, such Treasury orders are subject to the negative procedure in another place.
	This order-making power, with its use of negative parliamentary procedure, was specifically drawn to the attention of the Delegated Powers and Regulatory Reform Committee in the memorandum on this Bill. In light of the limited scope of this power, and the fact that such orders would require prior consultation with Welsh Ministers under Clause 119(3), the Delegated Powers and Regulatory Reform Committee was satisfied that negative parliamentary procedure was appropriate for Wales, just as it was for Scotland. I hope that, with the benefit of this explanation, the noble Baroness will feel able to withdraw the amendment.

Baroness Noakes: I am sorry that the Minister did not feel able to respond to my noble friend Lord Crickhowell's points. My noble friend took the issue that I raised in this amendment into a wider and more important arena. I do not think I heard the Minister give a comprehensive response to that. Instead we were given a rather minor example of how the power might be used and we were invited to say that what is good for Scotland might be good for Wales. I am not sure I am convinced by all of that. We will have to consider carefully what the Minister said before we decide what to do with this topic and before Report. I am also grateful for the support of the noble Lord, Lord Livsey. I will not detain the Committee tonight, because clearly time is moving on, but I am not entirely happy with the Minister's response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 96 not moved.]
	Clause 119 agreed to.
	Clause 120 agreed to.
	Clause 121 [Lending by Secretary of State]:

Baroness Noakes: moved Amendment No. 97:
	Page 66, line 13, leave out "£500 million" and insert "£100 million"

Baroness Noakes: Clause 121 concerns loans made by the Secretary of State to Welsh Ministers. Clause 120 allows Welsh Ministers to borrow from the Secretary of State to meet a temporary excess of payments over receipts in the Welsh Consolidated Fund or to provide a working balance. Under Clause 121 the Treasury makes money available to the Secretary of State for these loans, and subsection (2) provides for a limit of £500 million. My Amendment No. 97 deletes the £500 million limit and replaces it with £100 million.
	I should say that the amendment is a probing one. I hope that the Government will explain the rationale for the £500 million limit, especially as the loans are for only temporary imbalances between receipts and payments and for "working balances"—whatever that means. I therefore invite the Minister to say what calculations underpin the figure of £500 million. Will he say how that relates to the annual flows in and out of the Welsh Consolidated Fund? Will he also explain what is meant by a working balance and how much of the £500 million is expected to be used in this way? I beg to move.

Lord Crickhowell: As the question of loans has been raised I simply cannot resist the invitation given me by the Minister's earlier reference to a £100,000 debt being paid by Pembrokeshire County Council. It is actually paying off a loan that I negotiated 27 years ago, following the collapse of the Cleddau bridge. I should be very interested to know how much of that loan, which was rather important at the time, remains outstanding 27 years later. That may test the resources of the Minister's advisers but history demands that we should know exactly what has happened over the 27 years.

Lord Evans of Temple Guiting: It may not test my advisers but it certainly tests me. If I do not get the answer to that extremely interesting question I will write to the noble Lord.
	As we heard, the amendment considerably reduces the overall borrowing limit from £500 million to £100 million. The present £500 million limit amounts to just 3.8 per cent of the Assembly's budget. The £100 million limit proposed in the amendment would amount to a tiny 0.7 per cent of the Assembly's budget. We feel that the current limit is reasonable and proportional and is the same as the limit set by the current Government of Wales Act 1998. The Government believe that the express provisions in the Bill for Welsh Ministers to borrow from the Secretary of State to cover a short-term deficit in the Welsh Consolidated Fund or to provide a working balance within that fund are very important. It is envisaged that such borrowing might be necessary in the event of a natural disaster or civil emergency. The noble Baroness may be reassured to hear that such powers also exist in the Scotland Act 1998 but have never yet been used in either Wales or Scotland.
	There is also a provision that this limit can be increased by the Secretary of State by order provided that the Treasury gives its consent. Any order would be subject to affirmative procedure in the House of Commons, thus preserving the principle that the House should control the supply of money to the Executive.
	The noble Baroness asked two rather technical questions to which I am afraid I do not have the answers. I will be very happy to write to her on those.
	On the amount outstanding on the bridge, the noble Lord, Lord Crickhowell, will be delighted to receive the precise answer of £1.4 million.

Lord Crickhowell: I am enormously grateful for that. I congratulate the noble Lord's advisers on producing the information so promptly.

Lord Livsey of Talgarth: I agree with what the Minister has said. I did an off-the-cuff calculation at nearly 4 per cent of £500 million. Clearly, that is a very low figure to sustain the expenditure of the Welsh Assembly Government in emergencies. The figure should not be less than that.

Baroness Noakes: Clearly, the Liberal Democrats have financial expertise and understand the relationship between annual budgets and the amount needed for contingencies. I shall consider the matter carefully. The Minister said that he would write to me on the other questions that I raised. However, I am disappointed that he could not answer them this evening. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 121 agreed to.
	Clauses 122 and 123 agreed to.
	Clause 124 [Annual Budget motions]:

Baroness Noakes: moved Amendment No. 98:
	Page 67, line 39, at beginning insert "Subject to subsection (2A),"

Baroness Noakes: In moving Amendment No. 98, I shall speak also to Amendment No. 100. They seek to amend Clause 124, which deals with annual budget motions, the mechanism used to authorise expenditure each year. These are probing amendments.
	These two amendments concern payments in respect of the work of the Assembly, the Auditor General and the ombudsman. I understand that the cost of the work of those bodies will be overseen by a budget scrutiny process, which will be determined by new standing orders, and in the case of the Auditor General it will be overseen by the Audit Committee by virtue of paragraph 12 of Schedule 8.
	Clause 124 says that annual budget motions can be moved only by the First Minister or a Welsh Minister. That is fine if they include amounts for the Assembly, the Auditor General and the ombudsman that are in accordance with the budgetary scrutiny procedures, which are independent of Welsh Ministers. But what happens if Ministers allow less than the bodies need?
	I concede that my amendment is imperfect as it refers to amounts determined by the bodies and clearly the amounts will be determined by budgetary scrutiny procedures as well. But, with the exception of the Auditor General's expenditure, I could not see where in the Bill provisions were made for the bodies' budgets to be scrutinised, hence my probing amendment today.
	Will the Minister explain how the independent resource allocation processes that are essential for functions such as the Auditor General's are to be protected from the actions of Welsh Ministers? What procedures will be applied in relation to the work of the ombudsman and the Assembly itself? What happens if there is a disagreement with Ministers? I beg to move.

Lord Evans of Temple Guiting: I appreciate the aim of the noble Baroness in tabling Amendments Nos. 98 and 100; however, they are not necessary. The Committee will be familiar with the parliamentary rule of procedure that a request to Parliament to authorise expenditure must originate from the Executive.
	Clause 124(2) applies the same principle to Wales. It provides that a budget motion, covering the Welsh Ministers, the Assembly Commission, the Auditor General and the ombudsman, can be moved only by one of the Welsh Ministers. It is for Welsh Ministers to decide the amounts for which they seek authorisation in the annual budget motion. The Assembly will be able to scrutinise the amounts requested by the relevant persons in Clause 123(3)(b) to (d) in advance of the budget motion. For the Auditor General, estimates will be submitted to the Audit Committee for consideration before being laid before the Assembly, having taken any modifications into account. The Audit Committee will have to consult the Auditor General before proposing any modifications to his estimate.
	For the Public Services Ombudsman, it will be for standing orders to specify the relevant committee to which estimates must be submitted for consideration. The method of formulating the Assembly Commission bid can, like the appropriate committee to consider the ombudsman's estimate, be dealt with in the revised standing orders. Assembly Members will be able to scrutinise the amounts proposed in the budget motion in the light of those estimates and ultimately reject the motion if they are unhappy with it. I hope that the noble Baroness will feel that the necessary controls are there. The protection from the actions of Ministers and the ombudsman estimate procedure is set out in Schedule 10(85)(12).

Baroness Noakes: I am grateful to the Minister for setting that out clearly, and we will consider it in some detail. I am still not entirely clear whether the Bill protects the independent funding of those bodies, which everyone has agreed should be independent of the Executive and of Ministers. The issue is not the underlying substance but whether the Bill achieves that protection. I will consider carefully what the Minister has said, including his additional reference this evening. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Noakes: moved Amendment No. 99:
	Page 67, line 39, at beginning insert "Subject to subsection (2B),"

Baroness Noakes: We are still on Clause 124, and in moving Amendment No. 99 I shall speak also to Amendments Nos. 101 and 109 in this group, which are probing amendments. In the last group of amendments, I was talking about the problems of ensuring that the right amount of resources reached the Assembly, the Auditor General and the ombudsman free of interference from Welsh Ministers. This group of amendments addresses two similar bodies, the Children's Commissioner for Wales and the proposed Commissioner for Older People in Wales. The Children's Commissioner is supposed to be independent of the government and hence the office receives funding from the Assembly. If nothing else is done, that function will pass to Welsh Ministers by virtue of Schedule 11(28); that is, the funding of the Children's Commissioner for Wales will be transferred to the very people from whom he should be independent.
	Similar considerations apply to the Commissioner for Older People in Wales, who will come into being when the Commissioner for Older People (Wales) Bill, which is before Parliament, comes into law. Perhaps I could digress. The Bill left your Lordships' House in March but has still not had a Second Reading scheduled in another place. Perhaps the Minister could set out the Government's intentions on that Bill. My amendments proceed on the basis that the Commissioner for Older People (Wales) Bill will be pursued by the Government.
	My amendments propose two ways of tackling this issue. First, Amendments Nos. 99 and 101 amend Clause 124 so that the annual budget motion would have to include the amounts needed by the two commissioners as determined by the Assembly. Secondly, Amendment No. 109 amends Schedule 11(28) so that the current funding functions of the Assembly are not transferred to Welsh Ministers but to the Assembly Commission. I believe that Amendment No. 110, tabled by the Liberal Democrat Peers, represents a further way of dealing with the same issue, which must be dealt with.
	I recognise that my amendments are not perfect as drafted but, as I said, they are probing and I hope that the Minister understands the issues that I seek to probe. They are crucially about the independence of the two commissioners. I beg to move.

Lord Livsey of Talgarth: As the noble Baroness said, Amendment No. 110, which is in my name, covers the same point. Its main purpose is to ensure that the Assembly Commission pays the salaries, allowances and expenses incurred by the Children's Commissioner and the Commissioner for Older People in Wales. It is our wish as well to ensure that that is funded independently through the Assembly Commission.

Lord Davies of Oldham: I am grateful to the Members of the Committee who tabled the amendments. They may be probing so far as the noble Baroness is concerned, but they strike the usual terror into the Government so she must recognise that I expect them to be in a perfect state and will address them as though they were. I will certainly not get involved in textual analysis of them but shall deal with the issue of principle, as she asked me to do. That issue is straightforward in terms of our response to the amendments. The mechanism specified in the Bill for the funding of the commissioners is the same in principle as that established for the Children's Commissioner at present. I cannot give the noble Baroness an immediate answer on the progress of the Commissioner for Older People (Wales) Bill, but she will be among the first to know when it resumes its progress in another place.
	Under this Bill, the level of funding for the Children's Commissioner will, as now, be considered by Welsh Ministers and then put before the Assembly as part of its budget. It is intended that that will also be the case for the Commissioner for Older People, a point raised by the noble Lord, Lord Livsey. As we are all aware, the splitting of the legislature and the executive will formalise and clarify the Assembly's role in scrutinising Welsh Ministers. As part of that role, Assembly Members will have the power to scrutinise the Welsh Ministers' budget. They will be aided in that part of it which relates to the Children's Commissioner by the provision of an estimate, as provided for in paragraph 6 of Schedule 2 to the Care Standards Act. If they are not satisfied that the commissioners receive adequate funding, they will be able to hold the Welsh Ministers to account, thus ensuring proper and effective political and democratic accountability, which we all seek.
	There is absolutely no suggestion that this will affect the independence or importance of the role of the commissioners. Let me emphasise the obvious points. At a UK level, a parallel can be drawn with the creation of the Commission for Equality and Human Rights by the Equality Act, which received Royal Assent on 16 February. Paragraph 38 of Schedule 1 to that Act provides that the new commission is to be funded through grant in aid provided by the Secretary of State of the sponsor department—in other words, in the same way as the Commission for Racial Equality is funded and as is proposed to fund the Children's Commissioner and the Commissioner for Older People under this Bill. So far as I am aware, there is no suggestion that the work of the Commission for Racial Equality has been undermined or compromised in any way by the funding arrangements which Parliament put in place for it. I therefore see no reason why the similar funding arrangements that we are making for the commissioners in Wales should in any way affect their independence.
	The Auditor General for Wales and the Public Services Ombudsman for Wales are treated differently with regard to the financial provisions in the Bill, because they are Crown appointments and have functions relating to both the Welsh Ministers and the Assembly Commission.
	I hope that I have given the assurance that we are following the same procedures with regard to these commissioners in Wales as obtain with comparable commissioners operating on a UK basis, who certainly are funded through such mechanisms. I do not think that anyone in the Committee would suggest that they were not able to fulfil their highly valuable independent roles.

Baroness Noakes: I thank the Minister for that reply. I suggest that the commissioners whom he has tried to use as exemplars of UK practice are of a different kind; they were not set up with the intention that they would have the degree of independence that applies to the Children's Commissioner for Wales and will apply to the Commissioner for Older People—although that has not yet been completed. We need to consider the Minister's argument that it will be adequate for the Assembly to hold Welsh Ministers to account if it does not like their proposals. That does not meet what these Benches and the Liberal Democrat Benches were trying to achieve, which was to ensure that the existing independence was preserved and, indeed, enhanced under the new arrangements for Wales. So we will want to consider this matter again and return to it on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 100 and 101 not moved.]

Baroness Noakes: moved Amendment No. 102:
	Page 68, line 1, at end insert "under section 117(2)"

Baroness Noakes: I shall be brief with this probing amendment, too. It amends Clause 124 by adding "under section 117(2)" at the end of subsection (3)(b). Clause 117 sets out how money can be paid into the Welsh Consolidated Fund. Clause 124 picks that up in relation to the annual budget motion which requires, under subsection (3), a statement of "payments" to the Welsh Government—although in common parlance we are talking about the Welsh Government's receipts that come largely from the UK Government.
	Paragraph (a) specifically refers to Clause 117(1) in respect of those payments. That covers payments from the Secretary of State out of voted money. But paragraph (b) refers to payments made by Ministers of the Crown to Welsh Ministers and others. The words seem identical to those in Clause 117(2), but there is no reference to Clause 117(2), which raises the question of why there is that difference in drafting. Is it possible that Ministers of the Crown will make payments to Welsh Ministers other than within the powers of Clause 117(2)? If so, in what circumstances and under what powers will that happen?
	This probing amendment is designed to illuminate the sources of finance which will be covered by the annual budget motion. Is Part 5 of the Bill a comprehensive statement of the sources of finance for the Welsh Government or not? If not, what else is involved? I beg to move.

Lord Evans of Temple Guiting: As the noble Baroness has explained, Clause 124(3) requires the Welsh Ministers to accompany an annual budget motion with a written statement showing, for the relevant financial year, the total payments that they estimate will be made, under three headings: by the Secretary of State into the Welsh Consolidated Fund under Clause 117(1); by Ministers of the Crown and government departments to the Welsh Ministers, the First Minister and the Counsel General; and by any other person or body to the Welsh Ministers, the First Minister and the Counsel General.
	The purpose of the written statement is to inform Assembly debate on the budget motion moved by the Welsh Ministers by providing an estimate of the total payments going into the Welsh Consolidated Fund during the relevant financial year. This adds to the transparency and accountability of the Assembly's budget process.
	Although Clause 124(3)(a) expressly refers to "section 117(1)", which requires the Secretary of State to make payments into the Welsh Consolidated Fund from time to time, Clause 124(3)(b) does not expressly refer to Clause 117(2), which gives Ministers of the Crown and government departments an express statutory power to make payments to the Welsh Ministers. The reason for what may appear to my noble friends to be an inconsistency in drafting, spotted by the noble Baroness, is that Ministers of the Crown have other powers, aside from that under Clause 117(2), to make such payments. For example, the Commissioners of Customs and Excise have an express statutory power to refund overpaid VAT to the Welsh Ministers under Section 41(3) of the Value Added Tax Act 1994.
	Clause 117(2) is not intended to be the sole source of power for UK Ministers and government departments to make payments to the Welsh Ministers. Rather, it is intended to plug a gap in their existing powers to make such payments—for example, in the case of non-ministerial government departments which could not rely on the common law Ram doctrine to make payments to the Welsh Ministers.
	The effect of the amendment would be that, instead of having to record all payments which they estimate will be made to them by Ministers of the Crown and the UK Government in their written statement, the Welsh Ministers would be obliged to record only those payments made in reliance on the express statutory power in Clause 117(2). This would reduce the scope of that statement and would therefore compromise Assembly Members' ability to scrutinise the annual budget motion.
	As Clause 124(3)(b) is currently drafted, the Welsh Ministers would be obliged to include in their written statement not only payments made to them in reliance on Clause 117(2) but also any other payments which they estimate will be made to them by Ministers of the Crown and government departments, irrespective of the power under which they are made. That will give Assembly Members a complete picture of the total payments which the Welsh Ministers expect to receive from the UK Government when considering the annual budget motion.
	So the omission of the words "under section 117(2)" from the drafting of Clause 124(3)(b) is deliberate and is intended to maximise Welsh Ministers' accountability to the Assembly. Therefore, we feel that it is not appropriate or necessary to refer expressly to "section 117(2)" in this clause and, in the light of this explanation, I hope that the noble Baroness will feel able to withdraw the amendment.

Baroness Noakes: I am very grateful to the Minister for setting that out so clearly. Obviously it is something that we will all wish to study in detail. I say to the noble Lord in passing that it is a pity that the only example that he gave was of an organisation that no longer exists—that is, the Commissioners of Customs and Excise, which for over a year has been merged into another organisation called Her Majesty's Revenue and Customs. Whether or not it has the power to which the Minister referred is an open question. I will consider what he said and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 124 agreed to.
	Clauses 125 to 129 agreed to.
	Clause 130 [Welsh Ministers' accounts]:

Baroness Noakes: moved Amendment No. 103:
	Page 71, line 14, at end insert—
	"( ) The accounts must include amounts derived from the annual Budget motion in a form which facilitates comparison with the actual outturn for the financial year."

Baroness Noakes: I shall move Amendment No. 103 and speak also to Amendment No. 104. These amendments are in similar form and relate to two clauses dealing with accounts. Clause 130 deals with the accounts of Welsh Ministers and Clause 136 deals with the accounts of the Assembly Commission. My amendments amend each of these clauses with a new subsection, which says:
	"The accounts must include amounts derived from the annual Budget motion in a form which facilitates comparison with the actual outturn for the financial year".
	The Committee will be aware that when dealing with public expenditure it is vital to be able to compare the amounts voted with what has actually been spent. These amendments make it a requirement to include that. I hope that the Minister will agree that this is an essential component of accountability. I beg to move.

Lord Evans of Temple Guiting: I thank the noble Baroness for highlighting the issue relating to the content of the accounts and their comparability with the budget, as it is an area that we believe is greatly improved by the Bill. I hope that the noble Baroness will be reassured to hear that Part 5 of the Bill has been drafted in very close consultation with the Wales Audit Office. That office has expressed its satisfaction that the provisions in the Bill properly address the concerns that it raised with the Assembly's committee, in considering the White Paper, about current difficulties in reconciling the Assembly budget with the end-of-year accounts.
	The new provisions in Part 5 of the Bill have been drafted to recognise the separation between the Assembly and the Assembly Government. Ministers will now be required to request and Assembly Members will be asked to authorise the use of resources and the drawing of cash from the new Welsh consolidated fund—a neutral bank account that will initially hold the money paid over by the Secretary of State. Money can be withdrawn from that fund only if authorised by the Auditor-General. The Auditor-General cannot authorise money to be withdrawn unless legislation requires it, or the withdrawal has budgetary authorisation. This arrangement is very similar to the longstanding Whitehall arrangements and the devolved arrangements in place in Scotland and Northern Ireland.
	Clauses 124 and 125 require Budget Motions to specify the services and purposes for which resources are authorised to be used or retained by each of the persons and bodies funded out of the Welsh consolidated fund, and for which money is authorised to be issued to those persons out of the fund.
	The Government fully accept the principle behind this amendment, which is that Assembly Members, having been asked to authorise resources and cash drawings for specified services and purposes, are entitled to an audited statement of how those resources have been used and how that cash has been spent.
	Clause 130 requires Welsh Ministers to produce accounts in a form directed by the Treasury and Clause 136 makes similar provision in respect of the Assembly Commission. The Treasury direction will require compliance with the Government's financial reporting manual which, among other things, requires the production of a statement of outturn against approved request for resources. This statement is part of the accounts and will be subject to audit by the Auditor-General for Wales. The Auditor-General is content that the provisions of the Bill and the requirements of the financial reporting manual will achieve what is being sought by the noble Baroness in moving this amendment.
	The technical details on the precise content and format of the end-of-year accounts are left to Treasury direction and the manual so that the Treasury has the necessary flexibility to ensure uniformity with current government accounting practices—which, as we know, are updated periodically—while ensuring that the accounts are fit for purpose in terms of aiding democratic scrutiny. It is our view, therefore, that it is not appropriate or necessary to set out any further requirements on the face of the Bill. I hope that Baroness, Lady Noakes, agrees and will feel able to withdraw her amendment.

Baroness Noakes: I am grateful to the Minister for setting that out and, in effect, saying that the Treasury will be using the direction power under, for example, Clause 130(4) to ensure that the accounts contain the information that I believe it is common ground should be contained in the accounts. On that basis, I am very pleased to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 130 agreed to.
	Clauses 131 to 135 agreed to.
	Clause 136 [Assembly Commission's accounts]:
	[Amendment No. 104 not moved.]
	Clause 136 agreed to.
	Clauses 137 to 141 agreed to.
	Clause 142 [Audit Committee reports]:
	[Amendments Nos. 105 and 106 not moved.]
	Clause 142 agreed to.
	Clauses 143 and 144 agreed to.
	Schedule 8 agreed to.
	Clauses 145 to 148 agreed to.
	Schedule 9 agreed to.
	Clauses 149 and 150 agreed to.
	Clause 151 [Intervention in case of functions relating to water etc.]:

Lord Livsey of Talgarth: moved Amendment No. 107:
	Page 83, line 12, leave out subsections (2) to (6) and insert—
	"(2) The Secretary of State shall make representations to the Assembly as to how the relevant function has the effect described in subsection (1).
	(3) In considering whether or not to continue exercising that function, the Assembly shall have regard to—
	(a) the representations made by the Secretary of State under subsection (2); and
	(b) any adverse impact that would be had on Welsh water by the discontinuation of the relevant function."

Lord Livsey of Talgarth: It is particularly unfortunate that such an important topic as water is being debated so late. I hope that we will have another chance later in the Bill.
	Clause 151(1) states that:
	"This section applies where it appears to the Secretary of State that the exercise of a relevant function (or the failure to exercise a relevant function) in any particular case might have a serious adverse impact"—
	those are three important words—
	"on— (a) water resources in England, (b) water supply in England, or (c) the quality of water in England".
	It seems extraordinary that, in a Bill about Wales, where water is such an important commodity, that there is no like description for water in Wales. That does not add up at all.
	Our amendment states:
	"In considering whether or not to continue exercising that function, the Assembly shall have regard to- (a) the representations made by the Secretary of State under subsection (2); and (b) any adverse impact that would be had on Welsh water by the discontinuation of the relevant function".
	We are here trying to achieve parity on water provided in, so far as I am concerned as a Welshman, our own country. That is, after all, only justice. I will try not to detain the Committee for long, but I remind it that the Welsh Assembly has a duty on sustainability. That is written into the original Wales Act 1978, in which we had a hand.
	There are two basic issues: the environmental sustainability and the needs of consumers in Wales—certainly so far as adverse impacts are concerned. There is also the question of river basin management as a whole. Indeed, three of us in the Chamber tonight were at the Hay festival of literature last week, where there were five contributions—starting with Al Gore—on climate change. It was an interesting week on that subject. At one presentation I went to, they predicted that, by 2050, rainfall in Hay, on the Welsh border, would be 60 per cent less than it is now. Indeed, in Wales as a whole last year, it was 70 per cent of the average. So there are concerns in Wales, as well as England, about the amount of water we will have in future. The important wording is "adverse impact", which should be the same for both Wales and England.
	As we know, the Science and Technology Committee has today reported on water management, and mentioned new reservoirs, and so on, which would provide more sources of water. These are clearly sensitive political issues in Wales, as we know from our history. We do not wish to see the proper use of Clause 151 as a last resort power conflicting with other legislation, or bringing about environmental damage to water catchments in Wales. As a note, Regulation 3(2) of the Water Environment (Water Framework Directive) (England and Wales) Regulations 2003, states that:
	"The Secretary of State and the Assembly must exercise their relevant functions in relation to each river basin district so as best to secure that the requirements of the Directive for the achievement of its environmental objectives, and in particular programmes of measures, are coordinated for the whole of that district".
	One can see how important that would be to a whole river system. Perhaps we will have another chance to debate this issue, but I am drawing the attention of the Chamber to its importance. I beg to move.

Lord Roberts of Conwy: I cannot forbear commenting on this amendment to Clause 151, a formidable clause that provides for direct intervention by the Secretary of State when it appears to him that the exercise or failure to exercise a function may have a serious adverse effect on water resources, supply or quality in England. He can take over the function himself, and disable anyone else, including Welsh Ministers, from exercising the function. He has to give notice of his action, but that is not really a restraint on his overriding power.
	Water is, and has been, a sensitive issue, and England draws much of its supply from rivers and sources originating in Wales. The amendment does not surprise me. It seeks to clothe the naked exercise of the power to intervene by the Secretary of State with the veil of representations by him to the Assembly. I do not think for one moment that the Government will accept it, and so we see quite clearly where the ultimate power lies in the scheme of devolution proposed in the Bill. To use a cricketing metaphor, the Secretary of State is the wicketkeeper and the long stop in this clause, as elsewhere in the Bill.

Lord Roberts of Llandudno: I support the amendment standing in the name of my noble friend Lord Livsey, especially since the publication this morning of the House of Lords Science and Technology Committee report Water Management. This could have a devastating effect on communities in Wales that already have a reservoir in their area. The report states:
	"the construction of new reservoirs, and the enlargement of existing ones, for the purposes of public water supply are likely to be necessary in order to meet long-term water demand".
	That would give a green light to extend Welsh reservoirs; for example, Craig Goch in the Elan valley and even, possibly, the Tryweryn reservoir near Bala. That is why we think the close involvement of the Welsh Assembly Government is absolutely vital. I am certain that when we come to discuss this again on Report, we will have a longer discussion, and I hope that, by then, we will have some assurances from the Minister.

Lord Davies of Oldham: This is an important topic, and I am not surprised that the noble Lord, Lord Roberts of Llandudno, suggests that we might have a further debate on this issue. I will give him the assurances now, and he can dwell on them. I guess that he is likely to ask for them to become reassurances at a later stage of the Bill. But let us be absolutely clear: water flows from Wales to England, mainly in watercourses, and therefore safeguarding water is an issue for England, because of its dependence, to a degree, upon Wales, and not vice versa. The noble Lord, Lord Livsey, said that this is not an equally balanced power; of course it is not, because the facts of the situation are not equally balanced. That is the reason for the position.
	Let me be absolutely clear about what is sought. Of course the Government of Wales Act recognises that water is an issue that requires specific provision because of the cross-border nature of water catchments and water undertaker areas.
	At present, paragraph 6 of Schedule 3 to the Government of Wales Act provides a power of intervention by the Secretary of State in relation to relevant transferred environmental functions as defined there.
	The intervention power in Clause 151 re-frames the existing provision in the light of the expected enhancement of the legislative competence of the Assembly. So it follows what has obtained since 1998. Welsh Ministers have appellate and call-in functions in relation to the authorisation of discharge of pollution in certain waters. If use of the intervention power were under consideration—perhaps in relation to discharges from a significant industrial installation—the Secretary of State would have to make a judgment of whether such discharges, by their effects on rivers flowing into England, might have a serious impact on water quality there.
	If, having considered the circumstances, the Secretary of State had reasonable grounds for believing that there might be such an impact, he or she would have to decide whether to invoke the intervention powers.
	The Government expect only a remote possibility that the circumstances would occur where these intervention powers may have to be used. To date, the existing powers of intervention in the 1998 Act have never been used; nor has there been any suggestion that they might be used in the future. Any proposal that might risk triggering the intervention power in Clause 151 would in practice be discussed, and an agreed outcome would normally be reached, without the need for intervention. There is no reason to expect that the Welsh Ministers or others would use their executive powers irresponsibly and that the intervention power would need to be used other than as a last resort.
	Of course we need the last resort. It is an effective safeguard for the resources supply and quality of water in England. Given the crucial importance of water resources, of which we have become increasingly aware in the past few months, I do not believe that this Parliament would be adequately discharging its responsibilities to the people of England if it limited the Secretary of State's potential role only to making representations, as the amendment suggests. In such circumstances of real threat to water supplies to England through misjudged activity, the Secretary of State could intervene to correct that situation. It would not be just a question of persuasion, although of course as the situation developed one could not conceive of anything else except the fullest discussion of these issues between the bodies concerned.
	But, if a successful resolution were not achieved, then the Secretary of State would have an obligation. The obligation is there under the original Government of Wales Act. This reinforces the position for the future, and I think that it is an immensely reasonable proposition.

Lord Crickhowell: As a former chairman of the National Rivers Authority I fully understand the need for such a reserved power. I would be a little more cautious than the Minister in saying that a situation giving rise to a serious problem could never arise. I can think of all sorts of circumstances that might arise.
	My only other point is that there may be some impression that when we talk about the Secretary of State in this case we are talking about the Secretary of State for Wales. Of course we are not. The Secretary of State in the Bill can be any Secretary of State, and it seems to me most likely in this case that it would be the Secretary of State for the Environment. I make that point only to emphasise the importance, to which the Minister referred, of full and adequate consultation in an effort to find an agreed solution, because, as the noble Lord, Lord Livsey, said, these are very sensitive issues. One can envisage circumstances in which a Secretary of State for the Environment, faced with a water crisis in the eastern part of the country, because water comes via the Severn system into the Trent and is transferred even into East Anglia, might feel that the situation was so urgent that he was tempted to be insensitive to feelings in Wales. So although I entirely endorse the need for such a clause, I do think that emphasis must be placed on the need to find an agreed solution, if possible.

Lord Livsey of Talgarth: I thank the noble Lord, Lord Crickhowell, for that intervention, and the noble Lord, Lord Roberts, and the Minister for their remarks. A great deal of understanding all around is required on this very sensitive subject. The noble Lord, Lord Crickhowell, is quite right that the Secretary of State can be any Secretary of State, and the Secretary of State for the Environment could in certain circumstances be in a very difficult situation in negotiations, as could the Assembly. I do not think, with all due respect to the Minister, that the words that he used suggested that that there was only a remote possibility that the powers could be used. I think that it is quite possible in the current climate that they will be used. Indeed, one has only to look back to the summer of 1976, for those of us who can, to realise that there was a crisis at that time. There are big issues, such as the compensatory flows from reservoirs to sustain the ecology of the river systems. I will not go into that, but it is a huge question. There are a lot of issues here, and we will undoubtedly pursue this later. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 151 agreed to.
	Clauses 152 to 159 agreed to.
	Schedule 10 [Minor and consequential amendments]:

Lord Davies of Oldham: moved Amendment No. 107A:
	Page 144, line 20, leave out from "shall" to end of line 24 and insert "be sent to the Presiding Officer of that Assembly when a copy of the instrument is laid before that Assembly drawing attention to the fact that a copy of it has not been laid before that Assembly at least 21 days before it comes into operation and explaining why."

Lord Davies of Oldham: I move Amendment No. 107A on behalf of my noble friend Lord Evans of Temple Guiting, and speak to the other largely minor, technical amendments in this group.
	The amendments concern the consequential and transitional provisions of the Bill. I shall deal first with the consequential provisions. Amendment No. 107A ensures that if a statutory instrument is not laid before the Assembly at least 21 days before it comes into force, notification of this and the reason why must be sent to the Presiding Officer when a copy of the instrument is laid before the Assembly. Amendment No. 108A will allow the Electoral Commission flexibility in its expenditure on promoting the May 2007 Assembly elections. This is done by commencing a provision of the Bill earlier than originally provided for. The other two amendments correct a reference to an enactment, and specify the procedure that is to apply to regulations made by the Welsh Ministers under the Inquiries Act 2005.
	Overall, the amendments to Schedule 11 are aimed at ensuring that the transitional provisions can work smoothly and are specified as fully as possible in the Bill. A number of them clarify whether orders made under this schedule can be made while the current Assembly or the new Assembly exists. This is the case with Amendments Nos. 110B, 114, and 123 to 127. Other amendments in the group ensure that there is no doubt about the continuity of the exercise of functions. This is the case with Amendments Nos. 108F to 108N. Amendment No. 108B ensures that, during the initial period referred to in the Bill, the Clerk will make arrangements for the exercise of House Committee functions by Assembly staff. Amendment No. 110A makes it clear that Orders in Council under sub-paragraphs (1), (2) or (3) of paragraph 29 can contain consequential modifications of other enactments. The remaining amendments specify whether the negative or affirmative procedure is to apply to instruments made under this schedule or under powers that will transfer to the Welsh Ministers.
	Finally, the amendments to Schedule 12 on repeals are simply corrections. I apologise to the Committee for their necessity. I hope the Committee will recognise that the amendments are minor and technical changes to the drafting. I beg to move.

On Question, amendment agreed to.

Lord Evans of Temple Guiting: moved Amendments Nos. 107B and 107C:
	Page 151, line 18, leave out "Town and Country Planning" and insert "Planning (Hazardous Substances)"
	Page 163, line 28, at end insert—
	"(4) In subsection (5), after paragraph (a) insert—
	"(aa) if made by the Welsh Ministers, in pursuance of a resolution of the National Assembly for Wales;"."
	On Question, amendments agreed to.
	Schedule 10, as amended, agreed to.
	Clause 160 [Commencement]:
	[Amendment No. 108 not moved.]

Lord Evans of Temple Guiting: moved Amendment No. 108A:
	Page 90, line 18, at end insert—
	"the amendment made by paragraph 60 of Schedule 10 in section 13 of the Political Parties, Elections and Referendums Act 2000 (c. 41),"
	On Question, amendment agreed to.
	Clause 160, as amended, agreed to.
	Clause 161 agreed to.
	Schedule 11 [Transitional provisions]:

Lord Evans of Temple Guiting: moved Amendments Nos. 108B to 108N:
	Page 169, line 44, leave out from "period," to end of line 46 and insert "held the post referred to in the standing orders made under the Government of Wales Act 1998 (c. 38) as the Clerk to the Assembly."
	Page 170, line 9, after "provisions" insert "of the Government of Wales Act 1998 (c. 38)"
	Page 170, line 10, leave out "the Government of Wales Act 1998 (c. 38)" and insert "that Act"
	Page 170, line 11, after "provisions" insert "of that Act"
	Page 170, line 23, leave out from "effect" to end of line 24 and insert "after the commencement of that repeal as if made under section 58 of this Act."
	Page 170, line 41, leave out from "effect" to end of line 42 and insert "after the commencement of that repeal as if made by virtue of subsection (1) of section 59 of this Act." .
	Page 170, line 46, leave out from "effect" to end of line 47 and insert "after the commencement of that repeal as if made by virtue of subsection (5) of section 59 of this Act."
	Page 171, line 9, leave out "beginning" and insert "end"
	Page 171, line 12, leave out "beginning" and insert "end"
	Page 171, line 16, leave out from beginning to "by" in line 17 and insert "immediately before the end of the initial period, as a result of having been conferred or imposed on it"
	Page 171, line 20, leave out from beginning to "by" in line 21 and insert "immediately before the end of the initial period, as a result of having been conferred or imposed on it"
	Page 171, line 23, at end insert—
	"(3) For the purposes of this paragraph a function is "exercisable" at any time even if the enactment transferring, conferring or imposing it has not come into force at that time."
	On Question, amendments agreed to.
	[Amendments Nos. 109 and 110 not moved.]

Lord Evans of Temple Guiting: moved Amendments Nos. 110A and 110B:
	Page 172, line 13, leave out "this paragraph" and insert "sub-paragraph (1), (2) or (3)"
	Page 172, line 28, after "Assembly" insert "constituted by the Government of Wales Act 1998 (c. 38)"
	On Question, amendments agreed to.

Lord Roberts of Conwy: moved Amendment No. 111:
	Page 172, leave out line 30 and insert "affirmative resolution by both Houses of Parliament"

Lord Roberts of Conwy: This schedule relates to transitional provisions as outlined in Clause 161 in Part 6. Again, we are indebted to the Delegated Powers and Regulatory Reform Committee for drawing our attention to the importance of the clause and its related schedule, a fact that I noted in our opening debate in Committee. Schedule 11 gives the National Assembly's existing functions of making subordinate legislation to Welsh Ministers in the new Assembly. The Delegated Powers Committee concludes,
	"we consider that the transitional provisions are more significant than in most other bills and that the affirmative procedure should apply to orders which modify Schedule 11".
	It seemed to me when I tabled my amendments that the affirmative procedure was missing or qualified in much of paragraph 29 of the schedule. Our amendments sought to probe that. My understanding is that an Order in Council, under sub-paragraph (2), is allowed to amend part 1 of Schedule 5 and so,
	"enable the Assembly to . . . pass Assembly Measures in relation to that matter".
	The order would be subject to Assembly approval. The SI containing the order would be,
	"subject to annulment in pursuance of a resolution of either House of Parliament",
	under sub-paragraph (6), which is the negative rather than the affirmative procedure. Here, of course, we are dealing with the legislative competence of the new Assembly.
	The Delegated Powers Committee accepts the negative procedure before the UK Parliament, coupled with the affirmative procedure before the National Assembly in this case, on the grounds that it concerns functions already exercised by the National Assembly for Wales. But I revert to the principle that the affirmative procedure is needed where legislative competence is transferred.
	The Government have gone some way towards meeting this requirement with their amendment to sub-paragraph (7), which makes it clear that Orders in Council under sub-paragraphs (1) or (3) are subject to the affirmative parliamentary procedure. It is only orders under sub-paragraph (2) that are not so subject and for which, in the opinion of the Delegated Powers Committee, the negative procedure is sufficient. I beg to move.

Lord Evans of Temple Guiting: I do not accept that an Order in Council converting framework powers into measure-making powers should be subject to the affirmative procedure in Parliament. The requirements already written into the Bill for Assembly approval, together with the negative procedure in Parliament, are sufficient. Framework powers giving wide powers to the Assembly to make subordinate legislation have been included in certain Bills that are before Parliament this Session; for example, the NHS Redress Bill. Parliament has the opportunity to scrutinise those framework powers as part of the legislative process relating to the Bill in which they are contained.
	The Government have made it clear during this legislative Session that they intend for these framework powers to be converted into measure-making powers so that they will remain powers for the Assembly to make legislation. Therefore Parliament's scrutiny of these framework powers as part of the Bill's process has been carried out with full awareness of the Government's intention that they should, at a later date, be converted into measure-making powers. In this context, we feel there is no need for further scrutiny in Parliament at the point when an Order in Council is actually taken forward to convert the framework powers into Assembly measure-making powers. The necessary scrutiny will have been carried out as part of the process for scrutinising the Bill in which the framework power is contained.
	The Delegated Powers and Regulatory Reform Committee supports our view that the negative procedure in Parliament is sufficient for an Order in Council converting the framework powers into measure-making powers. At paragraph 44 of its report on the Bill, the committee accepted that the negative procedure before Parliament, coupled with the affirmative procedure before the Assembly, is sufficient.
	The effect of Amendment No. 113, when read with Amendments Nos. 111 and 112, is that all Orders in Council under paragraph 29 of Schedule 11 will be subject to the affirmative procedure in Parliament. Amendment No. 113 specifically removes the provision in sub-paragraph (8) for Assembly approval of those Orders in Council under paragraph 29 which are not to do with converting framework powers into measure-making powers. By removing this provision, Amendment No. 113 makes all such Orders in Council subject to the affirmative procedure in Parliament.
	It is important to appreciate the likely content of the Orders in Council that are under consideration here. They are Orders in Council which provide, for example, for functions that would otherwise transfer to Welsh Ministers to transfer to the First Minister or Counsel General instead or, in the case of functions not related to making subordinate legislation, to the Assembly Commission or Assembly; or which direct that functions transferred to Welsh Ministers are exercisable concurrently with the First Minister, Counsel General, Assembly Commission or Assembly. It is unlikely that many such Orders in Council will need to be made. However, if such provision is required, we have the mechanism for dealing with this in paragraph 29.
	Sub-paragraph (5) provides that the consent of the persons most affected by such provisions—Welsh Ministers, the First Minister or Counsel General, who already exercise the relevant powers—must be obtained. In addition, sub-paragraphs (7) and (8) ensure that the decision to make the Order in Council is scrutinised by either the Assembly or Parliament.
	The functions concerned are those currently exercised by the Assembly and which are to be transferred to Welsh Ministers under the Government of Wales Bill. It seems right that the Assembly should be able to decide who might exercise these powers instead of Welsh Ministers. Therefore, if the Assembly feels able to approve the Order in Council transferring or making a direction in relation to the functions concerned, that should be sufficient for a recommendation to Her Majesty to make the Order in Council. I do not agree that Parliament should have sole responsibility for deciding whether such an Order in Council can be made and therefore I cannot agree to the removal of sub-paragraph (8).
	With the benefit of this explanation, I hope that the noble Lord, Lord Roberts, will feel able to withdraw his amendment.

Lord Livsey of Talgarth: Perhaps I may add to what the Minister has said. We very largely agree with his summation of the situation. If these amendments were to come forward they would diminish the ability of the Assembly to scrutinise the legislation with which we are concerned.

Lord Roberts of Conwy: I am grateful to the Minister for his explanation and to the Government for their amendments to the clause. We shall study the next edition of the Bill when the Government's amendments are in place to see whether the position is as satisfactory as we would hope.
	In thanking the Minister, perhaps I may also at the end of the Committee stage thank his colleague. I also thank my colleagues who have assisted me on our Front Bench—my noble friends Lord Hunt of Wirral, Lord Kingsland, Lord Henley and Lady Noakes. I also give special and personal thanks to my noble friend Lord Crickhowell for his powerful contribution from the Back Benches.

Lord Evans of Temple Guiting: Perhaps I may express the same thanks to my colleagues, to the people in the Box from the Wales Office and from the Welsh Assembly, who have been such a terrific support, and to everyone who has taken part in the debate. It has been constructive, good humoured—with perhaps one exception—and extraordinarily interesting. We look forward to the Report stage.

Lord Livsey of Talgarth: We associate ourselves with the sentiments that have been expressed from both Front Benches. I thank our own team—my noble friends Lord Thomas of Gresford and Lord Roberts of Llandudno—the Minister and especially the team from the Wales Office and the Assembly, who have done a lot of very hard work. They know by now that we do work rather longer sometimes than the Assembly itself.

Lord Roberts of Conwy: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Countess of Mar: Before I call Amendment No. 111A, I must tell noble Lords that there is a mistake in the Marshalled List. The amendment should read:
	"Page 172, line 32, leave out from "under" to "unless" in line 33 and insert "sub-paragraph (1) or (3)".

Lord Evans of Temple Guiting: moved Amendment No. 111A:
	Page 172, line 32, leave out from "under" to "unless" in line 33 and insert "sub-paragraph (1) or (3)"
	On Question, amendment agreed to.
	[Amendments Nos. 112 and 113 not moved.]

Lord Evans of Temple Guiting: moved Amendments Nos. 114 to 127:
	Page 172, line 36, after "Assembly" insert "constituted by the Government of Wales Act 1998 (c. 38) or the Assembly constituted by this Act"
	Page 176, line 43, at end insert—
	
		
			  
			 "Section 45D of the School Standards and Framework Act 1998 (c. 31). Power to repeal school funding provisions." 
		
	
	Page 178, line 24, leave out "and (2)" and insert ", (2) and (3)"
	Page 178, line 32, leave out "16BC(3)" and insert "16BC(2) and (3)"
	Page 179, leave out lines 17 and 18.
	Page 179, line 19, leave out "that Act" and insert "the School Standards and Framework Act 1998 (c. 31)"
	Page 181, line 10, at end insert—
	"Section 94(6) of that Act. Power to require Welsh local authority to pay fee in relation to review of adoption and fostering functions."
	Page 182, leave out lines 3 to 10 and insert—
	"Section 26(2)(f) of the Children Act 2004 (c. 31).Power to make provision about implementation of children and young people's plans. Section 26(4) of that Act. Power to require approval of such plans."
	Page 184, line 2, at end insert—
	"(3) In this paragraph "pre-commencement enactment" means an enactment contained in an Act passed or subordinate legislation made before the end of the initial period."
	Page 185, line 27, at end insert "constituted by the Government of Wales Act 1998 (c. 38) or the Assembly constituted by this Act"
	Page 185, line 34, at end insert "or to which that Assembly was entitled or subject immediately before the end of the initial period"
	Page 191, line 18, after "Assembly" insert "constituted by the Government of Wales Act 1998 (c. 38)"
	Page 191, line 18, at end insert—
	"( ) In subsection (5)(a), after "Assembly" insert "constituted by the Government of Wales Act 1998 (c. 38)"."
	Page 191, line 21, after "Assembly" insert "constituted by the Government of Wales Act 1998 (c. 38)"
	On Question, amendments agreed to.
	Schedule 11, as amended, agreed to.
	Schedule 12 [Repeals and revocations]:

Lord Evans of Temple Guiting: moved Amendments Nos. 128 and 129:
	Page 197, leave out lines 7 and 8.
	Page 198, line 40, at end insert—
	
		
			  
			 "Planning and Compulsory Purchase Act 2004 (c. 5) Section 60(7)." 
		
	
	On Question, amendments agreed to.
	Schedule 12, as amended, agreed to.
	Remaining clauses agreed to.
	House resumed: Bill reported with amendments.
	House adjourned at five minutes before eleven o'clock.